| Mr. Carl W. S. Chun | Director | |
| Mrs. Nancy Amos | Analyst |
| Mr. Arthur A. Omartian | Chairperson | |
| Mr. Hubert O. Fry, Jr | Member | |
| Mr. Thomas E. O'Shaughnessy, Jr. | Member |
APPLICANT REQUESTS: That his discharge be changed to reflect a disability retirement.
APPLICANT STATES: That members of the Selected Reserve who have completed at least 15 qualifying years of service and who are involuntarily separated are eligible for retired pay at age 60. This provision is available to members who become medically disqualified for service. According to this provision, he should have received a medical retirement. He provides his Report of Separation and Record of Service, NGB Form 22, and his discharge orders as supporting evidence.
COUNSEL CONTENDS: That the applicant’s records were reviewed and referred to the Board for their careful and compassionate consideration. Counsel fully supports the applicant’s contention.
EVIDENCE OF RECORD: The applicant's military records are not available. Information contained herein was obtained from alternate sources.
After having had prior service in the Regular Army and the U. S. Army Reserve, the applicant enlisted in the Army National Guard on 26 October 1993.
On 28 April 2000, the applicant was discharged from the Army National Guard and as a Reserve of the Army due to being medically unfit for retention. His NGB Form 22 shows that he completed a total of 16 years, 7 months, and 2 days of service for pay. Orders D67-2, U. S. Army Physical Disability Agency dated 7 April 2000 show that he had a 20 percent disability rating and was authorized disability severance pay.
The applicant’s Army National Guard Retirement Points History Statement shows that he completed 13 years of creditable service for retired pay (13 qualifying years). It indicates that his retirement year ending dates 26 September 1997, 26 September 1998, 26 September 1999, and 28 April 2000 were not qualifying years for retired pay in that he earned less than 50 retirement points those years.
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 qualifying years of service. This authority 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 qualifying service as of 1 October 1991. The intent of the new subsection was to make the authority permanent.
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. While the Board notes that the applicant is credited with over 16 years of service for pay, his Army National Guard Retirement Points History Statement shows that he only had 13 years of qualifying service towards eligibility for retired pay at age 60. Unfortunately, a minimum of 15 years are required under Public Law 106-65.
3. 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
__aao___ __hof___ __teo___ DENY APPLICATION
| CASE ID | AR2002068483 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20020430 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | (DENY) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 135.03 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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