IN THE CASE OF:  
BOARD DATE: 1 February 2023 
DOCKET NUMBER:  AR20220007128 


APPLICANT REQUESTS:  to change his status from the Individual Ready Reserve (IRR) to the Retired Reserve. 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

•DD Form 149 (Application for Correction of Military Record)•National Guard Bureau (NGB) Form 23A (Army National Guard (ARNG) Current Annual Statement), period covering 14 June 1988 to 31 July 1971•NGB Form 22A (Correction to NGB Form 22 (Report of Separation and Record of Service)), 31 October 1979•Headquarters, Aviation Classification and Repair Activity Depot (1107th) Memorandum, Subject:  Request for Separation, 29 March 1988•Lester E. Cox Medical Centers, Stat History and Physical form, 1 April 1988•Statement of , MD, 7 April 1988•Orthopedic Association, Inc., covering period 5 May 1988 to 3 August 1988•SF 93 (Report of Medical History), 23 August 1988•Unknown, partial medical document, 23 August 1988•DA Form 4700 (Medical Record-Supplemental Medical Data), 23 August 1988•Neurological Associates of the Ozarks, Inc., 9 September 1988•Headquarters, U.S. Army Aeromedical Center Memorandum, Subject: Recommendation for Medical Disqualification, 19 October 1988•Headquarters, Department of the Army and Air Force, NGB letter,19 October 1988•Orders Number 094-023 issued by Headquarters, Missouri National Guard,4 April 1989•Partial SF-507 (Clinical Record), undated•Partial self-authored statement, undated



FACTS: 

1.The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code(USC), section 1552(b) [10 USC 1552(b)]; however, the Army Board for Correction ofMilitary Records (ABCMR) conducted a substantive review of this case and determinedit is in the interest of justice to excuse the applicant's failure to timely file.
2.The applicant states that he was forced out of the National Guard and is seeking toreceive his retirement. After his accident, he requested a flight evaluation, but wasinformed that he could not. He also requested to be double slotted in a non-flyingwarrant slot but was informed the unit could not approve his request. However, therewas an open non-flying slot that he could have filled until he reached the rank of ChiefWarrant Officer Four (CW4). In addition, he requested a medical discharge, but wasdenied. He was informed that his only options were to find his own slot or to convert tothe Ready Reserves. In April 2022, he found that he should have been placed in theRetired Reserve.

3.The applicant's service record shows:

a.On 3 August 1982, after having prior Regular Army, ARNG, and U.S. ArmyReserve enlisted service, the applicant was appointed as a warrant officer in the ARNG. 

b.Special Orders Number 39 AR issued by the NGB, dated 27 February 1986,promoted the applicant to the rank of Chief Warrant Officer Two (CW2), effective 14 January 1986. 

c.DA Form 71 (Oath of Office – Military Personnel), dated 11 March 1987, showsthe applicant reaffirmed the oath of office as a CW2. 

d.Permanent Orders Number 19-1 issued by Headquarters, Missouri NationalGuard, Office of the Adjutant General, dated 4 March 1988, awarded the applicant a Long Service Ribbon for 15 years of service in the National Guard of the State of Missouri. 

e.DA Form 4186 (Medical Recommendation for Flying Duty), dated 6 April 1988,listed the applicant as an Army Aviator and approved him for a temporary medical suspension due to a back injury caused by an aircraft accident. The suspension was extended to 30 September 1988 pending a recommendation from the Aeromedical Center, Fort Rucker, AL. 

f.Headquarters, U.S. Army Aeromedical Center Memorandum, Subject:Recommendation for Medical Disqualification, dated 19 October 1988, recommended the applicant for medical disqualification from further aviation service. He did not meet medical fitness standards for Class 2 flying duties due to a dislocation fracture of L1-L2; which required a laminectomy of L1-L2 and the placement of a Harrington Rods secondary to an aircraft accident. 

g.Headquarters, Aviation Classification and Repair Activity Depot (1107th) AviationCommand Memorandum, Subject:  Disqualification from Flying Status, dated 23 February 1989, disqualified the applicant from flying status, effective  
28 September 1988. He had to be reassigned to a non-rated position by 
24 March 1989. His options were to: 

•Find a non-rated, military occupational specialty for which he was qualified

•Transfer to another Reserve Component

•Transfer to the Standby or IRR

•Revert to an Enlisted status



h.NGB Form 22, ending on 1 April 1989, shows the applicant was honorablyreleased from the Missouri Army National Guard. 

(1)Item 10(a) (Net Service This Period) – 6 years, 7 months, and 29 days.

(2)Item 10(b) (Prior Reserve Component Service) – 9 years, 11 months, and9 days. 

(3)Item 10(d) (Total Service for Pay) – 16 years, 7 months, and 8 days.

i.Orders Number D-07-356736 issued by the U.S. Army Reserve Personnel Center,dated 13 July 1993, discharged the applicant from the U.S. Army Reserve Control Group (Reinforcement) and transferred him to the Ready Reserve, effective  
9 October 1992. 

4.The applicant provides:

a.NGB Form 23A, period covering 14 June 1988 to 31 July 1971, showing theapplicant's retirement points: 

•766 Active Duty Points

•1872 Total Career Points

•1711 Total Points for Retired Pay

•16 years, 7 months, and 8 days of Creditable Service for Retired Pay



b.NGB Form 22A amending his NGB Form 22 to show a corrected date of birth andmailing address. 

c.Headquarters, Aviation Classification and Repair Activity Depot (1107th)Memorandum, Subject:  Request for Separation, dated 29 March 1988, requested the applicant's separation. He was medically disqualified for continued flying status due to a dislocation fracture of L1-L2 vertebra requiring a laminectomy of L1-L2 and the placement of a Harrington Rods along with continued neurological deficit secondary to dislocation fracture. The request was for a transfer to the IRR and assignment to the Army Reserve Personnel Center, U.S. Army Control Group (IRR), effective 1 April 1989. 
d.Lester E. Cox Medical Centers, Stat History and Physical form, dated
1 April 1988 shows the applicant was treated for back pain due to a helicopter accident. 

X-rays of his L-spine revealed a severe compression fracture with dislocation of L2. He was diagnosed with Lumbar 2 fracture and distal neurological trauma.e.Statement of , MD, dated 7 April 1988, informed the Army AviationFlight Activities office of the applicant's accident and hospitalization in the Neurological Unit at the Springfield Neurological Clinic, Inc., His injuries were listed spinal fractures with impingement of the spinal cord at L1-L2 and partial paraparesis. 

f.Orthopedic Association, Inc., covering period 5 May 1988 to 3 August 1988,shows the applicant was treated for a lumbar vertebra fracture. On 2 April 1988, he had surgery to insert Harrington Rods and to fuse T-11 through L-4. 

g.SF 93, dated 23 August 1988, annotated the applicant's annual Class II Flightexamination. Item 74 (Summary of Defects and Diagnoses) shows the applicant had spinal surgery in April 1988 with some residuals and spinal flexion limited to 45 degrees. 

h.Unknown, partial medical document, dated 23 August 1988, in which theapplicant agreed to be cleared by a Flight Surgeon after hospitalization or after treatment of activities which may require restriction. 

i.DA Form 4700, dated 23 August 1988, recorded the applicant's flying experienceand designated aircraft type. 

j.Neurological Associates of the Ozarks, Inc., dated 9 September 1988, annotatedthe applicant's neurological assessment following the helicopter crash on 1 April 1988, in which he sustained a compression fracture of the L-2 vertebra and damage to the first lumbar vertebra. During surgery, Harrington Rods were inserted and post-operatively, he suffered weakness in the lower extremities and residual numbness of the distal right foot. 

k.Memorandum, Subject: Recommendation for Medical Disqualification, dated
19 October 1988 shows the Acting Chief, ARNG Aviation Division, determined the applicant was medically unacceptable for class II flying duties due to dislocation fracture of L1-L2. He was further disqualified due to continued neurological deficit secondary to dislocation fracture. The recommendation disqualified him from further aviation service. 

l.Orders Number 094-023 issued by Headquarters, Missouri National Guard, dated4 April 1989, separated the applicant from the National Guard and transferred him to the U.S. Army Reserve Personnel Center, U.S. Army Control Group (IRR), effective  
1 April 1989. 

m.Partial SF-507, undated, recommended the applicant for a flight evaluation.

n.Partial self-authored statement, undated, does not show entire content.


BOARD DISCUSSION: 

1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that partial relief was warranted. The Boardcarefully considered the applicant's record of service, documents submitted in supportof the petition and executed a comprehensive and standard review based on law, policyand regulation.  Upon review of the applicant’s petition, available military records themedical review and National Guard Bureau advisory opinion, the Board concurred withthe advising official finding the applicant does not meet the requirements to betransferred into the retired reserves and receive retirement benefits. However, the opinenoted the applicant should have had a line-of-duty determination for his injury and
should be referred to a medical evaluation board and undergo DES. The Board agreedthe applicant provided sufficient evidence to support he endured suffering from medicalinjuries and should have gone before a medical board for a determination of continuedservice. Based on the advising official opine, and evidence within the applicant’s record,the Board granted partial relief.

2.The Board determined DES compensates an individual only for service incurredcondition(s) which have been determined to disqualify him or her from further militaryservice.  The DES has neither the role nor the authority to compensate servicemembers for anticipated future severity or potential complications of conditions whichwere incurred or permanently aggravated during their military service; or which did notcause or contribute to the termination of their military career. These roles andauthorities are granted by Congress to the Department of Veterans Affairs and executedunder a different set of laws.

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

:X :X :X GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 

BOARD DETERMINATION/RECOMMENDATION: 

1.The Board determined the evidence presented is sufficient to warrant arecommendation for partial relief. As a result, the Board recommends that allDepartment of the Army records of the individual concerned be corrected by directingthe applicant be entered into the Disability Evaluation System (DES) and a MedicalEvaluation Board concerned to determine whether the applicant’s conditions(s), metmedical retention standard at the time-of-service separation.

a.In the event that a formal physical evaluation board (PEB) becomes necessary,the individual concerned may be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB if requested by or agreed to by the PEB president.  All required reviews and approvals will be made subsequent to completion of the formal PEB.  

b.Should a determination be made that the applicant should have been separatedunder the DES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 

2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief. As a result, the Board recommends denial of so much ofthe application that pertains to change his status from the Individual Ready Reserve(IRR) to the Retired Reserve.



Microsoft Office Signature Line...
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. 


ADMINISTRATIVE NOTE(S):  N/A. 



REFERENCES: 

1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords must be filed within three years after discovery of the alleged error or injustice.This provision of law also allows the ABCMR to excuse an applicant's failure to timelyfile within the three year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Army Regulation (AR) 135-180 (Qualifying Service for Retired Pay Non-RegularService), states in paragraph 2-1, to be eligible for retired pay, an individual need nothave a military status at the time of application, but must have:

•attained age 60

•a minimum of 20 years of qualifying service computed under Title 10, USC,section 12732; or;

•15 years of qualifying service, and less than 20, computed under Title 10, USC,section 12732, if the individual is to be separated because the Soldier has beendetermined unfit for continued Selected Reserve service



3.AR 135-175 (Separation of Officers) in effect at the time prescribes the policies,criteria, and procedures governing the separation of Reserve officers of the Army.Chapter 4 (Discharge of Army Reserve Officers) states:

a.When Federal recognition of ARNGUS officers is withdrawn for reasons inparagraphs 4-4a(10) and (11), those officers will be discharged from Reserve status as members of the USAR, unless they are qualified and apply for transfer to the Retired Reserve.  

b.Paragraph 4-4 (Removal from an active status) states members of the ArmyReserve will be removed from an active status with or without the officer's consent regardless of the length of commissioned service. When found to be medically unfit to perform active duty, except when the officer has been approved for continuance in an active status under the provisions of AR 140-120 or has incurred a disability in the line of duty and is eligible for processing under the provisions of pertinent medical regulations. An officer who is removed from active status for any reason listed above (medical unfitness) will be discharged if he is eligible and fails to apply for transfer to the Retired Reserve within -30 days from the date he is advised that he is being removed from active status. Officers who are determined administratively unfit to perform military duty by appropriate military authority based on objective evidence of such unfitness (e.g., medical evaluation made pursuant to AR 40-501 (Standards of Medical Fitness), paragraph 3-31a, 3-31c, or 3-32), will be discharged. 

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