RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 August 2005
      DOCKET NUMBER:  AR20040008759


      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. Prevolia Harper               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |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, 15 or 20-year retirement.

2.  The applicant states that he is requesting a 15 or 20-year retirement
because of his involuntary separation from the Tennessee National Guard.
He continues that he is 100 percent disabled and has performed above and
beyond the average Soldier.

3.  The applicant further states that he is a veteran of 2 combat wars and
Operation Noble Eagle and Iraqi Freedom and he deserves retirement.

4.  The applicant provides:

      a.  National Guard Orders 212-244, dated 30 July 2004.

      b.  Army National Guard Retirement Points History Statement.

      c.  A DD Form 214N (Armed Forces of the United States Report of
Transfer or Discharge) with an effective date of 15 October 1969 (Navy).

      d.  A DD Form 214 with an effective 12 May 1991 (Navy Reserve).

      e.  A DD Form 214 (Release or Discharge from Active Duty) with an
effective date of 24 September 2003 (Army).

      f.  Letters of appreciation and award certificates from the Navy and
the Army

      g.  A DA Form 638 (Recommendation for Award), dated 18 August 2003
which shows the applicant was approved for award of the Army Achievement
Medal.

CONSIDERATION OF EVIDENCE:

1.  The applicant, after having had prior service in the Regular Navy and
the Naval Reserve, enlisted in the Army National Guard (ARNG) on 6 November
2000.  He was awarded military occupational specialty 63H30 (Tracked
Vehicle Repairer) and served on active duty as a member of the Tennessee
Army
National Guard for the period 27 January 2003 to 24 September 2003.  The
applicant was discharged from the Tennessee National Guard on 1 July 2004
after being found medically unfit for retention.

2.  There are no medical records contained in the applicant's military
personnel file.  The applicant stated that he received a 100 percent
disability rating by the Department of Veterans Affairs (DVA).

3.  The applicant provided an Army National Guard Retirement Point History
Statement, dated 4 October 2004.  This document covers his Reserve
Component service between 1965 and 2004 and indicates that he accrued
2921 creditable points doing this period.  This document also shows that
the applicant has a total of 19 years, 10 months, and 1 day of creditable
service for retirement purposes.

4.  The applicant’s NGB Form 22 (Report of Separation and Record of
Service) with an effective date of 1 July 2004, shows the applicant
completed 22 years, 2 months, and 21 days of service for retired pay.

5.  In the processing of this case, a staff advisory opinion was obtained
from the Chief, Personnel Division, National Guard Bureau (NGB) who opined
that the Chief, National Guard Bureau is the approval authority for
involuntary discharge to Soldiers from the Army National Guard and Reserve
of the Army who are within 2 years of completing service required to
qualify for retired pay.

6.  The NGB Chief of Personnel also stated his opinion was coordinated with
the NGB Personnel Policy, Programs and Manpower Division who concurred with
the recommendation and stated that the Tennessee National Guard had no
authority to discharge the applicant.  He further stated that based on
Title 10, chapter 1223, section 12731b, the Army Secretary may determine
that Soldiers who are unfit because of physical disabilities, will be
determined to have met the service requirement.

7.  The NGB Chief of Personnel recommended that the Tennessee Army National
Guard amend the applicant’s order to reflect transfer to the USAR Retired
Reserve, reissue a NGB Form 22 reflecting the reason for retirement, and
provide the applicant with a 20-year letter.

8.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  On 17 February 2005, the applicant concurred with the
findings of the advisory opinion.

9.  National Guard Regulation/Army Regulation 600-200 (Enlisted Personnel
Management) governs procedures for enlisted personnel of the Army National
Guard.  Chapter 8 provides for the separation of enlisted personnel of the
Army Reserve and the Army National Guard for misconduct.  Paragraph 8-2
establishes that the authority to discharge Soldiers from the Reserve of
the Army
rests with the Secretary of the Army.  The authority for discharging
Soldiers from a state Army National Guard is the Adjutant General of the
State with the exception of those Soldiers who are within two years of
completing service required for retired pay.  In those cases, the Chief,
National Guard Bureau is the authority for discharge.

10.  NGR (AR) 600-200, paragraph 8-27 states that the Chief, National Guard
Bureau is the separation authority for Soldiers with 18 or more but less
than
20 qualifying years of service for retirement in accordance with paragraph
8-2c of this regulation.

11.  Army Regulation 135-178 (Enlisted Administrative Separations)
establishes policies, standards, and procedures governing the
administrative separation of certain enlisted Soldiers of the Army National
Guard of the United States and the United States Army Reserve.  Paragraph 1-
11of this regulation states that a soldier having 18, but less than 20
years of qualifying service for retired pay will not be involuntarily
separated without the approval of the Secretary of the Army or his
designated representative.  All recommendations for involuntary separations
of Soldiers in this case will be sent to Headquarters, Department of the
Army for consideration.

12.  Title 10 United States Code, section 12686, states that under
regulations to be prescribed by the Secretary concerned, a member of the
reserve component who is on active duty (other than for training) and is
within two years of becoming eligible for retired pay may not be
involuntarily released from that duty before he becomes eligible for that
pay, unless the release is approved by the Secretary.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged from the Tennessee Army National Guard for
failure to meet medical retention standards.  The applicant had a total of
19 years, 10 months, and 1 day of creditable service.  The applicant’s unit
did not seek the appropriate approval prior to involuntarily discharging
him on 1 July 2004.

2.  The applicant had more than 18 years but less than 20 years of
qualifying service at the time he was found to be unfit for retention in
active status.  He should have been offered a transfer to the Retired
Reserve with eligibility to receive retired pay at age 60.

3.  Therefore, based on the foregoing, it would be equitable to issue him a
notification of eligibility for retired pay at age 60 letter.

BOARD VOTE:

__LMD__  __JEA  __  __RTD __  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 Department of the Army records of the
individual concerned be corrected by:

      a.  showing that the applicant requested transfer to the Retired
Reserve effective 1 July 2004, based on physical unfitness with entitlement
to Reserve retired pay and benefits at age 60;

      b.  issuing the applicant an appropriate letter of notification of
his eligibility for retired pay; and

      c.  amending his NGB Form 22 showing the applicant was transferred to
the Retired Reserve.




             __James E. Anderholm __
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040008759                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050804                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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