Search Decisions

Decision Text

ARMY | BCMR | CY2002 | 2002068483C070402
Original file (2002068483C070402.rtf) Auto-classification: Denied
MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 April 2002
         DOCKET NUMBER: AR2002068483

         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
Mrs. Nancy Amos Analyst


The following members, a quorum, were present:

Mr. Arthur A. Omartian Chairperson
Mr. Hubert O. Fry, Jr Member
Mr. Thomas E. O'Shaughnessy, Jr. 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)


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



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



INDEX

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.


Similar Decisions

  • ARMY | BCMR | CY2001 | 2001065227C070421

    Original file (2001065227C070421.rtf) Auto-classification: Approved

    The applicant requests, in effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he was retired by reason of being medically unfit for retention and that he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) at that time. This bulletin referenced an Under Secretary of Defense memorandum which established the policy prohibiting a service member who shows symptoms associated with Persian Gulf illness from being retired or separated...

  • ARMY | BCMR | CY2002 | 2002067568C070402

    Original file (2002067568C070402.rtf) Auto-classification: Denied

    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. DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with...

  • ARMY | BCMR | CY2003 | 2003087263C070212

    Original file (2003087263C070212.rtf) Auto-classification: Approved

    Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to Title 10, U. S. Code, section 1448(f)(1)(B) states that the Secretary concerned shall pay an annuity to the surviving spouse of a person who is eligible to provide a reserve component annuity and who dies during the 90-day period beginning on the date the person receives notification under section 12731(d) of this title that he has completed...

  • ARMY | BCMR | CY2001 | 2001059669C070421

    Original file (2001059669C070421.rtf) Auto-classification: Approved

    The applicant requests a reconsideration of his application to correct his records to show that he was authorized a Reserve early retirement based upon physical disability. The staff of the Board has determined that the applicant’s submissions show a manifest error that requires Board review. Army Regulation 135-155, paragraph 4-29, states that a member, whose removal from active Reserve status is required by law, must be removed within the prescribed time limits unless eligible for...

  • ARMY | BCMR | CY2002 | 2002069796C070402

    Original file (2002069796C070402.rtf) Auto-classification: Approved

    The applicant requests, in effect, that the records of her deceased spouse, a former service member (FSM), be corrected to show he received a 15-year letter due to being medically unfit for retention and that he enrolled in the Reserve Component Survivor Benefit Plan (RCSBP) at that time. The applicant states that the FSM had over 18 years of service and was not properly taken care of. The litigation attorney for the NGB opined that had the FSM received a quadrennial retention physical in...

  • ARMY | BCMR | CY2008 | 20080007614

    Original file (20080007614.txt) Auto-classification: Approved

    IN THE CASE OF: BOARD DATE: 5 August 2008 DOCKET NUMBER: AR20080007614 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests, in effect, that her records be corrected to show she is entitled to an early Reserve retirement due to physical disability. The applicant states that when she was discharged from the Army National Guard (ARNG), her U.S. Air Force Reserve (USAFR) service was not on her record.

  • ARMY | BCMR | CY2002 | 2002066635C070402

    Original file (2002066635C070402.rtf) Auto-classification: Approved

    The applicant requests that the records of her deceased spouse, a former service member (FSM), be corrected to show he received his notification of eligibility for retired pay at age 60 (his 20-year letter). Based upon the listed causes of his death, it appears his death may have been related to his radical prostatectomy surgery. That the applicant be paid the RCSBP annuity retroactive to 17 November 2001, the date of the FSM’s death, as a result of the above corrections.

  • ARMY | BCMR | CY2011 | 20110020386

    Original file (20110020386.txt) Auto-classification: Denied

    The applicant requests, in effect, that his records be corrected to show that he was discharged from the Mississippi Army National Guard (MSARNG) due to permanent disability and was transferred to the Retired Reserve and issued a 15-year letter. The applicant states, in effect, that after serving over 17 years of service he was discharged from the MSARNG and the United States Army Reserve and was told that he had been medically discharged. Army Regulation 135-180 (Qualifying Service for...

  • ARMY | BCMR | CY2009 | 20090002681

    Original file (20090002681.txt) Auto-classification: Approved

    The applicant provides, in support of her application, copies of a letter from the Transition and Separations Branch, dated 8 September 2008, with enclosures; Orders 293-1, 9th Regional Support Command, dated 19 October 2000; DA Form 4187 (Personnel Action), with enclosure, requesting early retirement; a memorandum from Tripler Army Medical Center, dated 11 September 2000, informing the applicant of separation action; Chronological Statement of Retirement Points, dated 22 May 2008; DD Form...

  • ARMY | BCMR | CY2003 | 2003083618C070212

    Original file (2003083618C070212.rtf) Auto-classification: Denied

    The applicant requests correction of military records as stated in the application to the Board and as restated herein. The authority for her separation was National Guard Regulation 635-100, paragraph 5a(3)a (Resignation). 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: