RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         26 OCTOBER 2004
      DOCKET NUMBER:  AR2004101936


      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. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Curtis Greenway               |     |Member               |
|     |Ms. Eloise Prendergast            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  In effect, the applicant requests that his record be corrected to show
that he was transferred to the Retired Reserve with entitlement to
retirement benefits at age 60 under the provisions of 10 USC, Section
12731b.

2.  The applicant states that he had 16 years and 11 months of service when
he had a car accident and became a quadriplegic.  He was discharged because
of his medical condition.

3.  The applicant provides a copy of his NGB Form 22 (Report of Separation
and Record of Service), a copy of his retirement points history statement,
a copy of the orders discharging him from the Army National Guard and as a
Reserve of the Army, and copies of documents relating to his medical
condition.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 November 1992.  The application submitted in this case
is dated 16 December 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 was a member of the Army National Guard of North
Carolina.  A medical record from Pitt County Memorial Hospital, Inc. in
Greenville, North Carolina shows that the applicant was involved in a motor
vehicle accident on     5 July 1992 and sustained a cervical spine
fracture.  He was operated on for his condition.  He was discharged from
the hospital on 30 August 1992 with a diagnosis of C5-C6 fracture
dislocation with spinal cord contusion and C6-C7 quadriplegic.

4.  The North Carolina Army National Guard surgeon determined on 8 November
1992 that the applicant was not medically qualified for retention.  On
            10 November 1992 the Adjutant General, North Carolina Army
National Guard, directed that the applicant be discharged effective on 30
November 1992.

5.  On 13 November 1992 Orders 249-18 were published discharging the
applicant from the Army National Guard and Reserve of the Army effective on
   30 November 1992.  The applicant's NGB Form 22 reflects that action.

6.  A 10 December 2003 statement of the applicant's retirement points shows
that he had 16 years, 11 months, and 25 days of qualifying service
creditable for retired pay at age 60.

7.  In the processing of this case an advisory opinion was obtained from
the National Guard Bureau.  That agency recommended approval of the
applicant's request under the provisions of 10 USC, Section 12731b.  The
applicant concurred with the advisory opinion.

8.  10 USC, Section 12731b provides for 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,
to transfer to the Retired Reserve with entitlement to retired pay at age
60.  The member must have completed at least 15 years of qualifying service
for retired pay.  The period of this authority is from 23 October 1992,
ending on 31 December 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant would most assuredly have requested transfer to the
Retired Reserve in lieu of discharge had he been aware of the provisions of
the law, which became effective prior to his discharge.  By the same token,
because of the newness of this law, it could be assumed that the National
Guard Bureau was unaware of its provisions only subsequent to his
discharge.  Accordingly, his discharge on 30 November 1992, depriving him
of Reserve retirement pay at age 60 and other benefits is unjust.

2.  Therefore, the applicant should be transferred to the Retired Reserve
effective on 30 November 1992 under the provisions of 10 USC, Section
12731b, with entitlement to retired pay at age 60.

3.  Consequently, the Orders Number 249-18 published by the Office of the
Adjutant General, State of North Carolina on 13 November 1992 discharging
the applicant from the Army National Guard and Reserve of the Army is null
and void and of no force or effect, and should be revoked.  The applicant's
30 November 1992 NGB Form 22 reflecting his discharge should be amended
accordingly.



BOARD VOTE:

___JS___  ___CG __  __EP ___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that:

      a.  Orders 249-18 published by the Office of the Adjutant General,
State of North Carolina, dated 13 November 1992, discharging the applicant
from the Army National Guard and as a Reserve of the Army is determined to
be null and void, of no force or effect, and should be revoked.  The
applicant's NGB Form 22, dated 30 November 1992 should be amended
accordingly; and


      b.  The applicant records be corrected to show that he was transferred
to the Retired Reserve on 30 November 1992 under the provisions of 10 USC,
Section 12731b, with entitlement to retired pay at age 60.






                            ______John Slone__________
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004101936                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041026                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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