RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 26 February 2004
         DOCKET NUMBER: AR2003089554

         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. John T. Meixell		Member
Ms. Mae M. Bullock		Member

         The applicant and counsel if any, did not appear before the Board.

         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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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that he be granted retirement based on his active duty United States Army Reserve (USAR) and Army National Guard (ARNG) service.

2. The applicant states, in effect, that he served on active duty from 1962 to 1964 and again from 1965 to 1969. He also claims that he served in the Oklahoma ARNG from 1979 to 1990 and that he was not allowed to reenlist to complete his service due to a civilian related disability.

3. The applicant provides copies of his active duty separation documents
(DD Forms 214) in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1. Counsel requests, in effect, that all pertinent documents be reviewed and after careful consideration, if reasonable doubt should arise, that it be resolved in favor of the applicant.

2. Counsel states, in effect, that applicant is petitioning for retirement consideration based on his active, USAR, and ARNG service. Counsel claims that it is important that all pertinent evidence be reviewed in this case before a final decision is rendered.

3. Counsel provides only the enclosed hand-written comments in support of the application.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of error or injustice which occurred on 18 February 1990. The application submitted in this case is dated 10 March 2003.

2. 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. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

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3. The applicant’s record shows that he completed two separate periods of active duty service. The first from 5 February 1962 through 15 January 1964 and the second from 29 November 1965 through 27 November 1968. The DD Forms 214 issued for these periods of active duty service confirm that he completed a total of 4 years, 11 months, and 10 days of active military service.

4. A Report of Separation and Record of Service (NGB Form 22) on file confirms that the applicant served in the ARNG from 19 February 1975 through
18 February 1990, at which time he was honorably discharged by reason of expiration of term of service. The applicant authenticated this document with his signature in Item 20 (Signature of Person Being Separated). There are no documents on file that would indicate that this separation was involuntary or that the applicant was denied reenlistment.

5. The last ARNG annual statement of service completed on the applicant is dated 7 July 1990. This document provides the service credit earned by the applicant between 5 February 1962 and 18 February 1990. It shows that over the course of this total period the applicant had five years in which he did not earn sufficient points to accrue creditable service for retired pay purposes. It also shows that the applicant was credited with a total of 5 years, 9 months, and
23 days of creditable service for retired pay based on his two periods of active duty service. Finally, it confirms that over the course of his career, the applicant completed a total of 19 years, 9 months, and 23 days of creditable service for retired pay.

6. A comprehensive review of the available evidence of record produced no additional service that would result in an adjustment to the creditable service
for retired pay granted the applicant in the 7 July 1990 ARNG statement of service. The record did include two statements from civilian physicians. The last was dated 27 February 1990, and it stated that although the applicant had been discharged from further rehabilitation programs and was no longer receiving rehabilitation, he continued to have moderate to severe deficits that preclude him from active military duty at the time.

7. Title 10 of the United States Code, section 12731 provides the legal authority for age and service requirements for non-regular retired pay. It states, in pertinent part, that members are entitled to retired pay when they are at least
60 years of age and have performed at least 20 years of service. Subsection (d) states that the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay under this chapter. The notice shall be sent, in writing, to the person concerned within one year after the person completes that service.

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DISCUSSION AND CONCLUSIONS:

1. The evidence of record confirms that the applicant completed only 19 years,
9 months, and 23 days of creditable service for retired pay. The evidence also confirms that his active duty service was properly included in this total and there are no other documents or service statements on file that would result in an adjustment to his creditable service for retired pay.

2. There are medical documents on file that indicate the applicant was involved in a motor vehicle accident and that his civilian physicians indicated it temporarily disqualified him from active duty service. However, although the applicant claims that he was not allowed to reenlist or extend to complete the necessary service for retirement due to this medical condition, there is no evidence of record or independent evidence that supports this contention.

3. Further, there is a properly constituted NGB Form 22 on file that confirms that the applicant was discharged from the ARNG by reason of expiration of service obligation. The applicant authenticated this document with his signature, thereby verifying that the information contained therein was correct at the time it was prepared and issued.

4. Lacking any evidence to show that his discharge from the ARNG was anything other than voluntary, there is an insufficient evidentiary basis to grant the requested relief based on the medical issue raised. However, if the applicant has independent evidence that confirms he was denied reenlistment due to a disqualifying medical condition, he should consider providing this evidence and reapplying to the Board for reconsideration of his case.

5. 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.

6. The records show that the applicant should have discovered the error or injustice now under consideration on 18 February 1990, the date he was discharged from the ARNG. Therefore, the time for the applicant to file a request for correction of any error or injustice expired on 17 February 1993. However, the did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

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BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ _______ GRANT FORMAL HEARING

__AO__ __JM___ __MB ___ DENY APPLICATION

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.




                  Arthur A. Omartian
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089554
SUFFIX
RECON
DATE BOARDED	2004/02/26
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1990/02/18
DISCHARGE AUTHORITY	NGB 600-200
DISCHARGE REASON	ETS
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 303	129.0100
2.
3.
4.
5.
6.