RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 10 February 2004
         DOCKET NUMBER: AR2003090554


         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Linda M. Barker		Member
Mr. Richard T. Dunbar		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 transferred to the Retired Reserve.

2. The applicant states that his discharge should be converted to a retirement. Title 10, United States (U.S.) Code, Section 12731a allowed for members that had completed at least 15 and less than 20 years of service to apply for early retirement during the period 23 October 1992 through 31 December 2001. He was discharged in 1995 with 16 years of qualifying service.

3. The applicant provides copies of: an extract of Title 10, US Code, Section 12731a; separation orders, dated 12 December 1995; and a copy of his Statement of Retirement Points.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of injustice which occurred on 12 December 1995, the date of his discharge. The application submitted in this case is dated 10 January 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.

3. The applicant’s military records show that he was inducted on 18 October 1965. He continued to serve until he was honorably released from active duty on 17 October 1967. He was transferred to the US Army Reserve (USAR). He continued to serve until honorably discharged on 17 October 1971.

4. After a break in service, he enlisted in the Army Reserve on 22 September 1980. He was promoted to sergeant first class (SFC/E-7) effective 30 December 1987.

5. On 24 April 1995, the applicant was released from his troop program unit (TPU), at Fort Belvoir, Virginia, and was reassigned to the USAR Control Group (Reinforcement) due to his inability to locate a unit within commuting distance. The applicant relocated to South Carolina.



6. He was honorably discharged on 12 December 1995 from the USAR Control Group (Reinforcement) under the provisions of Army Regulation 135-178 for expiration of term of service. There is no evidence in his records that shows he was recommend for a medical evaluation board (MEB) or any form of physical disability processing prior to his discharge.

7. The applicant prepared a letter on 17 November 2001, to whom it may concern. He stated that he had completed over 18 years of service in the Army Reserve. He was injured on his civilian job and was released on disability due to no fault of his own. He was employed with General Motors for over 24 years. He was injured by a metal plate in the head on his civilian job and suffered memory loss, migraine headaches, and had difficulty walking and continues to suffer from these ailments. He also stated that he wrote numerous letters in 1991 to the Army Reserve Personnel Command (AR-PERSCOM) for assistance with his disability. The physician classified him as disabled on his civilian job that has caused a problem classifying him as disabled from the Army Reserve. He is now hoping that someone could assist him in qualifying for disability.

8. The applicant's records contain a copy of a letter to the applicant from the Social Security Administration, dated 14 June 2002. This letter stated that their records show that he was entitled to receive disability since August 1991.

9. On 18 September 2002, the Director, Personnel Actions and Services, US Army Reserve Personnel Command (AR-PERSCOM) prepared a memorandum in regards to his letter dated 17 November 2001. AR-PERSCOM stated that his injuries were received in a civilian capacity and if his injuries prevented him from performing his military duties he should have been evaluated by a medical board. However, his records did not indicate that procedures were followed and he may apply to this Board for relief.

10. The applicant’s records contain a copy of his Chronological Statement of Retirement Points which shows that he had completed 16 years of qualifying service for retirement purposes. These records also show that between September 1991 through September 1994 he was satisfactorily participating in unit training.

11. Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail and transfer of USAR soldiers. Chapter 7 of the regulation relates to the removal of soldiers from active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.



12. Paragraph 1-10 of Army Regulation 140-10, states that a reasonable commuting distance is defined as the longest distance a USAR soldier can be expected to travel involuntarily between their residence and a site where inactive duty training (IDT) would be conducted. It is a distance within a 50-mile radius of the IDT site. It will not exceed 1½ hours of travel time one-way by car under average traffic, weather, and road conditions.

13. Paragraph 4-9 of Army Regulation 140-10, states, in pertinent part, that voluntary reassignment of a TPU or IMA soldier to an appropriate control group of the Individual Ready Reserve (IRR) is authorized when a soldier has a change of address to an area beyond reasonable commuting distance of a USAR training center.

14. Army Regulation 135-178, in effect at the time, established the policies, standard, and procedures governing the administrative separation of enlisted soldiers from the Reserve Components. Paragraph 1-3 stated, in pertinent part, that orders discharging a soldier would not be revoked or the effective date changed after the effective dates of discharge unless there was evidence of manifest error or fraud. After the effective date of discharge, orders could be amended by the separation authority only to correct manifest errors such as the wrong character or service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.

15. Department of Defense Instruction (DODI) 1332.38 implements policy, assigns responsibilities, and prescribes procedures under DODI 1332.18 for retiring or separating service members because of physical disability; making administrative determinations for member with service incurred or aggravated conditions; and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits under Title 10, USC because the condition is unrelated to military status and duty.

16. Sections 12731 through 12739 of Title 10, United States (US) 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. After 1 July 1949, a qualifying year is one in which a Reserve soldier earned 50 retirement points or more.

17. Title 10, US Code, Section 12731a (3) (Temporary Special Retirement Qualification Authority), enacted the early qualification for retired pay at age 60 for soldiers found medically disqualified for retention in the U.S. Army Reserve on or after 5 October 1994. Under this provision, soldiers who complete at least 15 but less than 20 years of qualifying service and are medically disqualified are eligible to receive retired pay at age 60. The amount of retired pay is based on

the total number of qualifying years of service at time of removal rather than the 20 years normally required. Only soldiers who transfer to the Retired Reserve as a result of the medical disqualification are entitled to receive this benefit. The USAR was notified of this benefit on 1 July 1996.

18. Title 10, US Code, Section 12731b (Special rule for members with physical disabilities not incurred in line of duty), 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 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 years of service.

DISCUSSION AND CONCLUSIONS:

1. The evidence presented shows that he was injured on his civilian job, was released on disability due to no fault of his own, and continued to suffer from these ailments. He attempted to acquire assistance for his disability from AR-PERSCOM and was informed that if his injuries prevented him from performing his military duties that he should be evaluated by a medical board. There is no evidence in the available records, and the applicant has provided no evidence, to show that a medical board or any form of physical disability processing was recommended. There also is no evidence to show that he was found unqualified for retention.

2. The applicant was released from his TPU and was reassigned to the USAR Control Group (Reinforcement) due to his inability to locate a unit within commuting distance. He relocated to South Carolina, which was not within the 50-mile radius of his IDT site, and was later discharged. It is assumed that his release was voluntary in accordance with regulation and was beyond reasonable commuting distance.

3. It is apparent that the applicant had completed at least 16 but less than
20 years of qualifying service and was honorably discharged. However, he failed to meet the criteria of Title 10, US Code, Section 12731a.

4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 December 1995, the date of his discharge; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 11 December 1998. However, the applicant 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.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__js___ ___lb___ ___rd____ DENY APPLICATION

1. The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2. As a result, the Board further determined that there is no evidence provided which shows that it would 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. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




                  ___John N. Slone___
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090554
SUFFIX
RECON
DATE BOARDED	20040210
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19951212
DISCHARGE AUTHORITY	AR 135-178
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	338
2.
3.
4.
5.
6.