RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 February 2005
      DOCKET NUMBER:  AR20040002783


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Ms. Laverne V. Berry              |     |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.  The applicant requests that his records be corrected to make him
eligible for a Reserve retirement.

2.  The applicant states, in a 10 June 2004 email to the office of his
Representative in Congress, that he was a very trusting person and had
trusted the wrong people to provide him correct information about his
retirement.  It was due to his training he received in the Army that he
would have never have thought he would be lied to or misinformed as he was.

3.  The applicant stated, in a 12 September 2003 email to his
Representative in Congress, that he had been assured by both his unit
technician and a senior noncommissioned officer that he had qualified [for
a Reserve retirement] and would be transferred to the Retired Reserve and
would soon receive orders to that effect.  He had talked in detail with
both his unit technician and the representative of the 99th Regional
Support Command (RSC) as to why he was requesting a retirement.  He had
also requested a medical retirement and was told that he did not need one,
due to already qualifying for a Reserve retirement.  He further told those
representatives that he was pending a disability rating from the Veterans
Administration (VA) that would probably disqualify him from reenlistment if
he left the service.  He was again assured that he had met the
requirements.  He was extremely mad when he found out that they had misled
him and he was discharged from the unit.

4.  The applicant further stated, in the 12 September 2003 email, that he
had contacted the Inspector General representative at the 99th RSC and was
told he could request an exception to policy to reenlist by going through
his unit.  However, when he tried to contact his unit he was informed it
was deactivating.

5.  The applicant stated, in a 1 October 2003 letter to his Representative
in Congress, that he was assured he had qualified for a retirement and
would not need to extend his enlistment or reenlist while awaiting orders
assigning him to the Retired Reserve.  He had explained that he was
awaiting a VA rating that would disqualify him from medically qualifying
for further service.  Those problems were aggravated by Army Reserve duties
and he questioned if he could qualify for a medical retirement.  He was
again told that he had qualified for a Reserve retirement and would not
need to go through a medical retirement process.

6.  The applicant provides, in addition to the emails noted above, an email
dated 29 April 2004; an email dated 5 June 2004; an email dated 9 September
2003; an email dated 10 June 2004; a DA Form 3349 (Physical Profile) dated
              29 February 1992; his DD Form 214 (Certificate of Release or
Discharge from Active Duty) for the period ending 3 March 1995; his U. S.
Army Reserve (USAR) discharge orders; and a VA Rating Decision dated 23
September 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 May 1998.  The application submitted in this case was
received on 21 June 2004.

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 limitations 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 born on 7 February 1952.  After having had prior
service in the Regular Army and the USAR, he enlisted in the Regular Army
on 19 June 1980.  None of his enlistment/reenlistment contracts are
available.

4.  On 29 February 1992, the applicant was given a permanent physical
profile of 313321 for medical conditions of asymmetrical hearing loss in
his right ear and a ruptured disk L5 – S1.

5.  The applicant was promoted to Sergeant First Class, E-7 in MOS 31Y,
Communications System Supervisor, on 1 February 1993.

6.  The applicant requested separation under the Special Separation Benefit
(SSB) program and was discharged on 3 March 1995 after completing 18 years,
4 months, and 15 days of creditable active service and a total of 7 years,
           3 months, and 10 days prior inactive service.  He was
transferred to the USAR Control Group (Reinforcement) to complete his
required service obligation.  He had been paid an SSB benefit of
$68,887.63.

7.  On 1 May 1996, the applicant was transferred to a TPU.  His
reassignment orders indicated his expiration term of service was 21
February 1998.

8.  On 23 June 1996, the applicant's DA Form 3349 was annotated by his unit
commander indicating that the applicant's profile did not require a change
in his military occupational specialty (MOS) (which was 31C, Single Channel
Radio Operator).  It also indicated that the applicant was capable of
executing all duties as assigned; that his expiration term of service
physical, dated 1995, showed a profile of 313311; and that he remained
fully deployable.

9.  Effective 30 May 1998, the applicant was discharged from the USAR [due
to expiration term of service].

10.  Effective 1 February 1999, the VA increased the applicant's disability
rating for asthma from zero percent to 30 percent and his rating for
herniated disc, lumbar spine from 20 percent to 40 percent.

11.  When the SSB and its companion separation incentive program, the
Voluntary Separation Incentive (VSI) program, were established, detailed
briefings were given to all Soldiers potentially eligible for the programs.
 Part of the briefing informed Soldiers that those voluntary separation
programs were not early retirement programs but were intended to ease
career changes for relatively young men and women who were likely to
proceed immediately to new careers in the civilian sector.  Soldiers were
also briefed that if they continued their military career in the Reserves
and earned, in combination with their active service, sufficient points to
qualify for a military Reserve retirement, Federal law required the
recoupment of any SSB and VSI payments received.

12.  Title 10. U.S. Code, section 12731 provides the age and service
requirements to receive retired pay for a Reserve retirement.  A person is
entitled to retired pay if the person (1) is at least 60 years old; (2) has
performed at least 20 years of qualifying service; (3) has performed the
last 8 years of qualifying service while a member of a Reserve component (6
years required during the period 1 October 1991 through 31 December 2001);
and (4) is not entitled to retired pay under any other provision of law.

13.  Title 10, U. S. Code, section 12731a was the temporary special
retirement qualification authority.  Section 12731a(a) stated that during
the period 1 October 1991 through 31 December 2001, a member of the
Selected Reserve who had completed at least 15, and less than 20, years of
qualifying service could be determined to have met the service requirements
outlined in subsection (a)(2) of section 12731.  Each such person would be
notified that he had completed the years of service required for
eligibility for retired pay.

14.  Title 10, U. S. Code, section 12731a(c)(3) stated that a member who no
longer met the qualifications for membership in the Selected Reserve solely
because the member was unfit because of physical disability, and upon the
request of the member, could be transferred to the Retired Reserve and
treated as having met the service requirements outlined in subsection
(a)(2) of section 12731.

15.  Army Regulation 140-111 (U. S. Army Reenlistment Program) provides the
basic qualifications for immediate reenlistment in the USAR.  In pertinent
part, it states that if the Soldier does not meet the retention medical
fitness standards in Army Regulation 40-501, chapter 3 then the Soldier is
disqualified from reenlistment and a waiver is required.

16.  Army Regulation 635-40 governs the evaluation of physical fitness of
soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.
 In pertinent part, it states that, after a Soldier has been enlisted, the
Soldier will not be declared physically unfit for military service because
of disabilities known to exist at the time of the Soldier's acceptance for
military service that have remained essentially the same in degree since
acceptance and have not interfered with the Soldier's performance of
effective military service.

DISCUSSION AND CONCLUSIONS:

1.  The Board understands that the applicant's contention that he was a
very trusting person and had trusted the wrong people to provide him
correct information about his retirement. The Board also understands that
he was not a "career" Reserve Soldier; however, he was a senior
noncommissioned officer.  He could have asked to see the requirements for a
Reserve retirement in writing or asked to see the regulation governing
Reserve retirement before taking the step not to reenlist (or attempt to
reenlist).  In addition, as a senior noncommissioned officer he should have
made himself aware of the requirements for a Reserve retirement so he could
have informed his subordinates if they had questions regarding the same.

2.  More importantly, however, he himself acknowledged that he was pending
a disability rating from the VA that would probably disqualify him from
reenlistment. He had at least some of those disabilities (herniated disc)
at the time he enlisted in the USAR, so it appears he would not have met
the requirements for a medical retirement from the USAR.  If he had been
found not to have met the qualifications for membership in the Selected
Reserve because he was physically unfit, as he contends most likely would
have happened, he still would not have been eligible for a Reserve
retirement.  He still would not have served his last 6 qualifying years of
service in a Reserve component.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 May 1998, the date he was
discharged from the USAR; therefore, the time for the applicant to file a
request for correction of any error or injustice expired on 29 May 2001.
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
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__fne___  __jrs___  __lvb___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




            __Fred N. Eichorn_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002783                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050210                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |136.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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