MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 June 2002
         DOCKET NUMBER: AR2002067568

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Roger W. Able		Member
Mr. Harry B. Oberg		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 discharge be voided and he be transferred to the U. S. Army Reserve (USAR) Control Group due to medical disability.

APPLICANT STATES: That he submitted a 22 September 1988 letter from his doctor to his unit and requested to be transferred to the Control Group due to disability but his letter was never processed and instead he was discharged. Since he continued to receive a Chronological Statement of Retirement Points, ARPC Form 249-2-E, accumulating retirement points, he thought he was still in the USAR Control Group. Also, he never received his discharge orders until 4 December 2001. As supporting evidence he provides the 22 September 1988 letter from his doctor, an ARPC Form 249-2-E dated 2 March 2000, a 4 December 2001 letter from the U. S. Army Reserve Personnel Command (AR-PERSCOM) denying his application for retired pay, a Retirement Points Accounting System Summary Points Inquiry dated 4 December 2001, and his discharge orders dated 28 September 1988.

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

He was born on 18 April 1942. He had prior service in the Regular Army and USAR from June 1962 – June 1968. He reenlisted in the USAR on 2 June 1975. He was promoted to Staff Sergeant, E-6 on 29 November 1979. He last reenlisted in the USAR on 17 March 1985 for 3 years making his expiration term of service (ETS) 16 March 1988.

A letter dated 20 October 1987 filed in the applicant’s Official Military Personnel File indicates he was injured on his job on 18 February 1987 when the supports for the truck cab he was working on gave way and fell, striking him across the upper back. He was diagnosed in October 1987 with probable nonunion of a fracture of the sternum and low back strain with left lumbar radiculopathy. The 22 September 1988 letter indicates he was still under a doctor’s care for treatment of bulging of L4-5 and L5-S1 discs.

Orders 155-27, Headquarters, First U. S. Army, Fort George G. Meade, MD dated 28 September 1988 discharged the applicant from the USAR effective 28 September 1988.

ARPC Form 249-2-E dated 2 March 2000 shows the applicant completed 13 years, 11 months, and 16 days of qualifying service for retirement and continued to be credited with 15 retirement points from the date of his discharge through retirement year ending (RYE) 1 June 1995.

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Apparently, the applicant applied for retired pay. He was informed on 4 December 2001 that he did not have enough qualifying years to be eligible for retired pay at age 60. At that time his retirement points were recomputed and it was revealed that he had 14 years, 11 months, and 16 days of qualifying service for retirement.

Army Regulation 135-178 establishes policies governing the administrative separation of enlisted soldiers from the Army National Guard of the United States and the USAR. In pertinent part it states that upon ETS, the soldier will be discharged by the separation authority. It also states that, when through
administrative error a soldier is not discharged on the actual date of his or her ETS, he or she will be considered to have been retained beyond normal discharge date for the convenience of the Government.

Army Regulation 140-10 prescribes policies to assign, remove, or transfer USAR soldiers. In pertinent part, it states that soldiers are authorized assignment to the Retired Reserve under several circumstances, including when the soldier has reached the age of 37 and completed a minimum of 8 years of qualifying Federal service or is medically disqualified not as a result of his or her own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed. Eligible soldiers must request transfer.

Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized. It states that retirement points may be earned by USAR soldiers for active duty or while in an active Reserve status.

Sections 12731 through 12738 of Title 10, U.S. Code, authorize retired pay for Reserve component military service. Under this law, a Reserve soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60. The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.

Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U. S. Code by adding section 12731b, (Special rule for members with physical disabilities not incurred in line of duty). Section 12731b(a) states that a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service.

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The authority provided by section 12731b, Title 10, U. S. Code had existed as a force reduction/transition initiative in section 12731a(c)(3) for the period beginning 23 October 1992 and ending 30 September 2001 for those members who completed at least 15 years of service as of 1 October 1991. The intent of the new subsection was to make the authority permanent. It is not “retroactive” beyond the effective date (23 October 1992) already provided for.

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. 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 that would satisfy this requirement.

2. It is not clear why the applicant did not notice his ETS was up in March 1988. As a noncommissioned officer with previous enlistment/reenlistment experience in both the Regular Army and the USAR, he should have known that a soldier cannot be retained beyond his ETS without his agreement and for specific reasons (such as medical treatment). Even if he had requested transfer to a Control Group (and presumably he meant the Retired Reserve) in September 1988, he could not have been transferred because his ETS had already expired although he was erroneously retained. It appears his September 1988 contact with his unit triggered them to issue discharge orders, which was proper for them to have done.

3. Although the ARPC Form 249-2-E is dated 2 March 2000, the last date for which he was (erroneously) given retirement point credit was RYE 1 June 1995. The applicant provides no explanation, if he believed he was in the Control Group and previous ARPC Forms 249-2-E credited him with points, as to why he did not question his retirement point credit stopping at RYE 1 June 1995.

4. Since the applicant applied for retired pay when he neared age 60, knowing he did not have 20 years of qualifying years for retired pay, presumably he believes that showing he was transferred to a Control Group due to a medical disability would qualify him for retired pay based upon Public Law 106-65. While the applicant is only days short of having 15 years of qualifying service for retirement under this law, the law is not “retroactive” beyond the effective date (23 October 1992) already provided for. The applicant was discharged in and his last qualifying year was 1988.

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

__FNE__ __RWA__ __HBO__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067568
SUFFIX
RECON
DATE BOARDED	2002/06/11
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	135.03
2.
3.
4.
5.
6.