MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 20 SEPTEMBER 2001
         DOCKET NUMBER: AR2001055594

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Gale J. Thomas		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Kenneth W. Lapin		Member
Mr. Paula Mokulis		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his records be corrected to show he received an additional qualifying year for retirement, and that he be given a disability retirement with a disability rating of 40 percent.

APPLICANT STATES: That he was honorably discharged from the United States Army Reserve (USAR) with only one year left to obtain his 20 year retirement. He further states that he was injured in an automobile accident in March 1996 and was unable to attend scheduled drills, that he attempted to apply for a 15 year retirement but did not receive proper assistance.

COUNSEL CONTENDS: The applicant's counsel reiterates the applicant's contention that he should be granted an additional year for retirement purposes and given a disability retirement.

EVIDENCE OF RECORD: The applicant's military records show:

On 5 October 1976, he enlisted in the Regular Army.

On 28 January 1990, he was released from active duty under the provisions of Army Regulation 635-200, chapter 4, for expiration term of service. His DD Form 214 indicates he was transferred to the USAR after completing 13 years, 3 months and
24 days of active service.

In March 1996, the applicant was involved in an automobile accident. His civilian physician determined he would not be able to return to work until 29 April 1996 and then restricted him to desk work. There is no indication that the automobile accident occurred while the applicant was performing annual training, active duty special work, active duty for training or inactive duty training.

On 23 May 1996, the applicant's civilian physician extended his modified work restriction. His doctor noted that any form of physical activity would be harmful to him and hinder his recovery. There is no additional documentation in his available records concerning his recovery or any additional extensions of his duty restriction.

On 3 June 1996, as a result of his civilian imposed duty restriction, the applicant was given excused absences from drills for the periods of 30-31 March 1996, 20-21 April 1996 and 18-19 May 1996.

The applicant's unexcused absence notices, dated 25 July 1996 and 15 August 1996, informed him that in order to be medically excused from further drills he needed to report to the Walson Air Force Hospital, for a medical evaluation on 7 September 1996. There is no evidence that he reported for the evaluation.


On 1 November 1996, he was transferred from the USAR to the Individual Ready Reserve (IRR) because of unsatisfactory participation.

On 3 February 1998, while in the IRR, he requested a 6 month extension which extended his expiration term of service (ETS) from 29 July 1998 to 29 January 1999.

On 29 January 1999, he was honorably discharged from the IRR, under the provisions of Army Regulation 135-178, for expiration term of service.

The applicant's Chronological Statement of Retirement Points (ARPC Form
249-2-E), dated 1 September 2000 indicates he had a total of 18 years of qualifying military service for retirement purposes.

Army Regulation 135-91 provides that an accumulation of 9 unexcused absences from scheduled drills within a 1-year period places a Reservist in the category of an unsatisfactory participant, which can then result in a transfer to the IRR under the provisions of Army Regulation 140-10.

Army Regulation 135-180 implements the statutory authority governing what constitutes qualifying service for retired pay for non-regular service in the Reserve Components. It provides that to be eligible for retired pay, an individual must have attained the age of 60 and completed a minimum of 20 years of qualifying service, the last eight of which are served in a reserve component. A qualifying year is defined as a year of service during which a Reservist earns at least 50 retirement points.

Army Regulation 635-40 states, in effect, that Reserve Component soldiers will be separated from the Reserves when they no longer meet medical retention standards. Such separation will be without benefits if the unfitting condition results from an injury which is due to the intentional misconduct or willful neglect of the individual, if the disability was incurred during a period of unauthorized absence, or if the disability was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training.

The National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337) amended Title 10, United States Code, section 1331a(c). The modification allows Reserve Component soldiers who are involuntarily separated between 5 October 1994 and 30 September 1999 because of medical unfitness to elect transfer to the Retired Reserve for Reserve retirement pay at age 60 based on a minimum of 15 years of qualifying service toward Reserve Component retirement. The individual must also meet the requirement of having performed the last 6 years of qualifying service in the Reserve Components as outlined in Title 10, United States Code, section 1331(a) and the new subsection (f).



DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. There is no evidence that the applicant was involuntarily separated from the USAR because he was not medically fit for retention. He is, therefore, ineligible to receive retirement pay at age 60 based on 15 years of qualifying service. The applicant was separated upon expiration of his term of service.

2. There is no evidence in the available records, nor did the applicant provide any, which substantiates his claim that he remained disabled and was unable to attend scheduled drills from the time of his accident in March 1996 to 29 January 1999, the date of his discharge. There is no basis to grant the applicant's request for any additional qualifying years of service in order to become eligible for retired pay.

3. The evidence of record indicates he did not have any medically unfitting disability that required physical disability processing. There is no basis for physical disability retirement or separation. Additionally, the evidence indicates his automobile accident did not occur while performing annual training, active duty special work, active duty for training, or inactive duty training. Even if there was a basis for disability processing he would not have been entitled to any benefits.

4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence to show that there was an error or injustice in this case.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__RJW__ __KWL __ __PM___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001055594
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010920
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	135.00
2.	108.00
3.
4.
5.
6.