MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 02 JULY 2002
         DOCKET NUMBER: AR2002071421


         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
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Raymond J. Wagner		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         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: Physical disability retirement or credit for 20 qualifying years of service for retired pay at age 60.

The applicant states that he was not evaluated for a medical discharge after suffering from a heart attack in 1989. He never returned to Reserve duty after his heart attack. He did receive a medical evaluation at Brooklyn Hospital Center. He encloses copies of those records.

The applicant states that he needs financial assistance for medical expenses and needs a 20-year letter to obtain benefits.

PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

The applicant served on active duty for two years from 13 December 1963 to 13 December 1965. He had one day of lost time. He served on active duty again from 2 March 1966 to 22 February 1969 for a total of 2 years, 11 months, and 19 days of service. He had two days of lost time.

The applicant enlisted in the Army Reserve for one year on 15 July 1977 and remained in the Army Reserve until his discharge in 1991. His last enlistment in the Army Reserve occurred on 15 April 1985 for a period of six years. His service in the Reserve was with the 618^th Supply Company in Fort Totten, New York.

The applicant was discharged from the Army Reserve on 6 May 1991.

A 24 December 1991 radiology report of a single projection of his chest shows clear lung fields. The pulmonary vasculature was normal. There was no pleural fluid nor thickening. The cardiovascular silhouette was normal in size and shape. There was no mediastinal nor hilar mass and the thoracis bony cage was
unremarkable. A 31 December 1991 medical record shows that an echocardiography revealed no visible thrombi, vegetations or masses at left
atrium or left atrial appendage; intact interatrial septum; no visible intraluminal masses or atheromateous lesion at descending aorta (up to 35 cm from the incisors); borderline left ventricular hypertrophy with normal left ventricular function; mild, calcific aortic sclerosis; and trace pericardial effusion. A letter from a physician at the Brooklyn Hospital – Caledonian Hospital dated 3 January 1992 indicates that the applicant was admitted to the hospital on 24 December 1991 and found to have atrial flutter and Bells palsy. He was diagnosed on 3 January 1992 with Bells palsy.

A 20 August 1996 chronological statement of retirement points shows that he had 16 years of qualifying service for retired pay at age 60 as of his retirement year ending (RYE) date of 14 July 1990. That statement failed to compute his partial qualifying years of service in 1968-1969 and 1990-1991. Those partial qualifying years would give him 17 plus qualifying years of service.

Title 10, United States Code, section 12731a allows temporary special retirement qualification authority for Reserve Component soldiers with at least 15 years of service. It allows Reserve component soldiers who are involuntarily separated between 23 October 1992 and 31 December 2001 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.

Army Regulation 635-40, chapter 8, outlines the rules for processing through the disability system soldiers of the Reserve component who are on active duty for a period of less than 30 days or on inactive duty training; and outlines the criteria under which soldiers of the Reserve component, whether or not on extended active duty, apply for continuance in the active Reserve.

Paragraph 8-2 states that soldiers of the Reserve components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, etc.

Paragraph 8-6 states that when a commander believes that a soldier not on extended active duty is unable to perform his duties because of physical disability, the commander will refer the soldier for medical evaluation.

Paragraph 8-9 states in pertinent part that a soldier not on extended active duty who is unfit because of physical disability will be separated without benefits if the disability was not incurred or aggravated as the proximate result of performing annual training, active duty special work, active duty for training, inactive duty training, etc.

Army Regulation 135-180 implements statutory authorities governing the granting of retired pay to soldiers and former Reserve Component soldiers. Paragraph 2-1 of that regulation states, in pertinent part, that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of his qualifying service as a Reserve component soldier.
Paragraph 2-8 of that regulation describes qualifying service, as pertains to this case, as service performed as an enlisted person in an active status in a Reserve
component or in active federal service. After 30 June 1949, a reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

There is no evidence, nor has the applicant provided any, to indicate that his medical conditions were determined to be the proximate result of performing annual training, active duty special work, active duty for training, etc. There is no evidence that the applicant was referred to a medical evaluation board in 1989, two years prior to his discharge from the Army Reserve. There is likewise no evidence to show that he was involuntarily separated because of a physical disability. The evidence indicates that he was discharged prior to the period which allowed for temporary special retirement qualification because of a physical disability. Consequently, there is no basis to correct his record to show physical disability retirement or to credit him with either 15 or 20 qualifying years of service for retired pay at age 60.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 6 May 1991, the date the applicant was discharged from the Army Reserve. The time for the applicant to file a request for correction of any error or injustice expired on 6 May 1994.

The application is dated 4 March 2002 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted. Prior to reaching this determination the Board looked at the applicant’s entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

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DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__KAK __ __AAO__ __RJW __ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2002071421
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020702
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.	142.00
2.	108.00
3.	135.00
4.	177
5.
6.