| Mr. Carl W. S. Chun | Director | |
| Mr. Kenneth H. Aucock | Analyst |
| Mr. Arthur A. Omartian | Chairperson | |
| Mr. John P. Infante | Member | |
| Ms. Yolanda Maldonado | Member |
APPLICANT REQUESTS: In effect, retirement pay at age 60 based on 15 years of nonregular service.
APPLICANT STATES: At the time of his separation from the Army Reserve in 1995, he had over 18 years of qualifying service for retired pay at age 60. He submits a copy of his chronological statement of retirement points, a copy of the order discharging him from the Army Reserve, a copy of an authorization for a warrant officer to act upon his behalf, and a copy of a legal opinion from the Total Army Personnel Command Judge Advocate.
EVIDENCE OF RECORD: Incorporated herein by reference are military records which were summarized in a memorandum, dated 26 March 1997, prepared to reflect the Board's consideration of his request to be granted a waiver of his medical condition so that he could remain in the Army Reserve and complete 20 years of qualifying service (AC96-09815).
The applicant had 18 years, 7 months, and 13 days of qualifying service for retired pay at age 60 when he was transferred to the Retired Reserve effective on 5 September 1995 because he was medically unfit for retention.
On 7 August 2002 the Total Army Personnel Command Judge Advocate provide a legal opinion to the warrant officer who was acting upon the applicant's behalf. The applicant is aware of this opinion. The Command Judge Advocate stated that the governing authority, 10 U.S.C., 12731b, which was effective on 5 October 1999, did not apply to the applicant, because he is not a member of the Selected Reserve, and the provisions of that section is not retroactive. That officer also stated that the Secretary of the Army had not implemented 12731b in any regulation.
10 U.S.C., 12731b is a special rule for members with physical disabilities not incurred in line of duty, and states in effect, that in the case of 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, the Secretary may, determine to treat the member as having met the necessary service requirements for retirement at age 60, if the member has completed at least 15, and less than 20, years of qualifying service for retired pay. 12731b was added 5 October 1999 by Public Law 106-65.
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. The applicant is not entitled to retirement pay at age 60 under the provisions of 10 U.S.C. 12731b. He was transferred to the Retired Reserve in 1995 prior to the enactment of the applicable rule.
2. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.
3. 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 that requirement.
4. 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__ __JPI ___ __YM ___ DENY APPLICATION
| CASE ID | AR2003084151 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20030724 |
| 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. | 136.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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