RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 May 2005
      DOCKET NUMBER:  AR20040006727


      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. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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, in effect, that he be determined to be eligible
for retired pay at age 60 due to medical disqualification.

2.  The applicant states, in effect, he was told he was not medically
qualified to reenlist.  His unit administrator did not do her job.  He
could have received a verbal waiver for the 7 months he needed to qualify
for retirement and could  have been paid for and received points for the 2
or 3 drills he attended after       19 November 1988.  The State either
lost or misplaced his medical records which showed his blood pressure was
too high for a new enlistment.

3.  The applicant provides his DD Form 214 (Report of Transfer of
Discharge); two NGB Forms 22 (Report of Separation and Record of Service);
a letter from the National Personnel Records Center dated 19 March 2004;
and three NGB Forms 23 (Retirement Credits Record).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 19 November 1988.  The application submitted in this case
is dated 30 June 2003 and was received on 9 September 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 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 are not available to the Board.  This
case is being considered using reconstructed records which primarily
consist of the documents provided by the applicant and his Army National
Guard (ARNG) Retirement Points History Statement.

4.  The applicant was born on 16 May 1943.  After having had prior service,
he enlisted in the ARNG on 2 May 1977.  He was honorably discharged from
the ARNG and as a Reserve of the Army on 19 November 1988 upon the
expiration of his service obligation.  His ARNG Retirement Points History
Statement shows he had completed 19 years, 1 month, and 16 days of
qualifying service.  During his last retirement year, ending 19 November
1988, he earned 8 membership points and a total of 44 points.  He would
have completed his retirement year on 1 May 1989 with an additional 7
membership points and a total of 51 points.

5.  Sections 12731 through 12738 of Title 10, U.S. 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.  The term “good years” is an unofficial
term used to mean years in which 50 or more retirement points are earned
during each year and which count as qualifying years of service for
retirement benefits at age 60.

6.  Public Law 106-65, dated 5 October 1994, established early reserve
retirement eligibility for Soldiers involuntarily separated from the
Selected Reserve due to physical disability during the period 5 October
1994 through      30 September 1999 (later extended).  Eligibility is based
on a minimum of          15 years of qualifying service toward Reserve
Component retirement.  Title 10, U. S. Code, section 12731a(a)(1) was
amended to extend the Early Reserve Retirement Eligibility for Disabled
Members to the period beginning on               23 October 1992 to
Soldiers who attained 15 years of retirement eligibility after    1 October
1991.

7.  Section 1176(b)(2) of Title 10, U. S. Code states that, if on the date
prescribed for the involuntary separation (other than for physical
disability or for cause) or whose term of enlistment expires and who is
denied reenlistment (other than for physical disability or for cause) from
an active status of a reserve enlisted member or officer he is entitled to
be credited with at least 19, but less than 20, years of service, he may
not be discharged, denied reenlistment or transferred from an active status
without his consent before the earlier of the date on which he is entitled
to be credited with 20 years of qualifying service or the second
anniversary of the date on which he would otherwise be discharged or
transferred from an active status.

8.  In the processing of this case, an advisory opinion was obtained from
the Personnel Division, National Guard Bureau.  That office recommended
approval of the applicant's request.  It stated that, in accordance with
National Guard Regulation 600-200, paragraph 8-2(c), the Chief, National
Guard Bureau is the approval authority for the involuntary discharge of
Soldiers from the Army National Guard of the United States who are within 2
years of completing the service required to qualify for retired pay.  Since
the applicant was in this window, and it appears his involuntary discharge
was never approved at the Chief, National Guard Bureau level, he should be
given a proper medical discharge and issued a notification of eligibility
for retired pay at age 60 (a 20-year letter).

9.  A copy of the advisory opinion was provided to the applicant for
comment.  He concurred with the advisory opinion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not receive an involuntary discharge (he was
separated upon his expiration term of service); therefore, Chief, National
Guard Bureau approval was not required under the provisions of National
Guard Regulation 600-200, paragraph 8-2(c).  There is no evidence he was
medically disqualified.  In any case, eligibility for a Reserve retirement
with less than 20 years based on medical disqualification did not come into
effect until October 1994, retroactive to October 1992.  The applicant
separated in November 1989.

2.  Nevertheless, the applicant had over 19 years of qualifying service at
the time he separated.  By law, he could not be separated upon his
expiration term of service without his consent.  It appears that his
consent was not given.  It appears his separation was improperly processed.


3.  It would be equitable to correct his records to show he served until 1
May 1989 at which time he would have earned 51 retirement points for
retirement year ending 1 May 1989 and have completed his 20th qualifying
year.

BOARD VOTE:

__rjw___  __bje___  __lmd___  GRANT 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 all the state Army National Guard records
and Department of the Army records of the individual concerned be corrected
by:

     a.  voiding his 19 November 1988 separation from the Army National
Guard;

     b.  showing he served until 1 May 1989 and earned 15 membership and a
total of 51 retirement points for that retirement year, at which time he
was separated from the Army National Guard and transferred to the Retired
Reserve effective 2 May 1989;

     c.  showing he was issued a 20-year letter in June 1989; and

     d.  showing he applied for retired pay on 1 January 2003.




            __Raymond J. Wagner___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040006727                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050519                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |135.02                                  |
|2.                      |135.03                                  |
|3.                      |136.03                                  |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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