RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 July 2005
      DOCKET NUMBER:  AR20040010368


      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. Alan Chin                     |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Leonard G. Hassell            |     |Member               |
|     |Mr. Patrick H. McGann             |     |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 his records be corrected to
show entitlement to retired pay and benefits.

2.  The applicant states that he feels he was grossly misled and unjustly
removed from the United States Army Reserve (USAR) when he only had 1 year
and 3 months left to earn his 20 “good years” of military service.  He
states that he was told that based on his medical records he would be
discharged from the USAR.  He states that he was falsely told that in lieu
of discharge he would be placed in the U.S. Army Retired Reserve with full
pay and benefits at age 60.  He further states that he accepted the Army’s
statement believing the Army would fulfill its obligation to him as he had
fulfilled his obligation and service to the Army.

3.  The applicant provides copies of his medical examinations, dated 21
July 1989, 10 September 1993, and 17 August 1998; U.S. Army Reserve
Personnel Command (USAR-PERSCOM) memorandum from the Command Surgeon,
Subject: Request for Additional Information for Medical Evaluation, dated
12 February 1999; USAR-PERSCOM letter, reference reply to his DD Form 108,
Application for Retired Pay Benefits, dated 23 April 2004; ARPC Form 249-2-
E (Chronological Statement of Retirement Points), dated 6 July 2002; and DD
Form 214 (Armed Forces of the United States Report of Transfer or
Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on or about 22 January 2000 when he transferred to the U.S.
Army Retired Reserve.  The application submitted in this case is dated 14
November 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’s military records show that he was inducted into the
Regular Army on 28 July 1965 for a period of 2 years.  On 30 April 1967 he
was honorably released from active duty and transferred to the USAR Control
Group (Annual Training), St Louis, Missouri where he continued to serve
until his discharge on 27 July 1971.

4.  On 14 September 1981 the applicant rejoined the USAR.  During the
period of his return to the USAR he completed required periodic physical
examinations on 21 July 1989, 10 September 1993, and 17 August 1998.  His
21 July 1989 examination revealed that he was not physically qualified for
duty due to uncontrolled diabetes and medication; nonetheless, he was
allowed to continue to serve.  His 10 September 1993 examination revealed
that he was qualified to perform all duties of rate and rank at sea and
foreign shores.  In November 1996 the applicant had a heart attack
requiring quadruple bypass surgery.  On his recovery from surgery he
returned to his reserve obligation.  His latest examination on 17 August
1998 indicated that his “qualifications for Reserves to be determined by
Ofc in St Louis”.

5.  On 12 February 1999 the Command Surgeon, USAR-PERSCOM sent a letter to
the applicant requesting additional information for medical evaluation.
The letter states, in part, that his most recent Army physical examination
(17 August 1998) indicates that he may be disqualified for retention due to
an existing medical condition requiring further evaluation.  He was
required to provide an original or certified copy of his cardiovascular
screening and physician statement reference degenerative joint disease of
the spine.  On 14 April 1999, the applicant provided the required
documentation.

6.  The applicant was immediately contacted by SFC T_____ from the Command
Surgeon’s office advising him that based on his medical records he would be
discharged from the USAR due to health reasons.  The applicant states that
after further discussion with SFC T_____ he was informed that he could not
be retained in the Reserve but he could be put in the Retired Reserve and
that he would receive pay and full benefits.  The applicant accepted the
verbal agreement with SFC T_____.

7.  The applicant continued to serve until he was released from his
Individual Mobilization Augmentee (IMA) unit due to medical
disqualifications.  He voluntarily transferred to the Retired Reserve on 22
January 2000 in the rank of Staff Sergeant/pay grade E-6 and received his
Reserve Retired identification card, assuming everything was proper.

8.  The applicant’s ARPC Form 249-2-E shows that he had completed 18 years,
9 months, and 3 days of qualifying service for retirement purposes as of
13 September 1999.  There is no evidence to show that he was issued a
notification of qualification for retired pay at age 60 (15-Year Letter)
prior to his release.

9.  At age 59½ the applicant applied for retired pay benefits.  The
applicant’s application is unavailable for review.  On 23 April 2004, the
Chief, Transition and Separations Branch, USAR-PERSCOM sent the applicant a
letter in reply to his application.  This letter states, in part, that an
audit of his military records show that he completed 28 years, 11 months,
and 24 days of total service, qualifying and non-qualifying; however, only
18 years, 9 months, and 3 days was qualifying service for retired pay at
age 60.  Accordingly, he is ineligible to receive retired pay.

10.  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.

11.  Department of Defense Instruction 1332.38 implements policy, assigns
responsibilities, and prescribes procedures under Department of Defense
Directive 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.

12.  Title 10, US Code, Sections 12731 through 12739 authorizes 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.

13.  Title 10, US Code, Section 12731 allows Reserve Component Soldiers who
were involuntarily separated because of medical unfitness between 1 October
1991 and 31 December 2001 to elect transfer to the Retired Reserve for
Reserve retirement pay at age 60 based on a minimum of 15 years of
qualifying service toward Reserve Component retirement.  The individual
must also have met the requirement of having performed the last 6 years of
qualifying service in the Reserve Components.

14.  Title 10, US Code, Section 12731a, enacted the early qualification for
retired pay at age 60 to reduce the number of members in certain grades who
possess certain skills and for Soldiers found medically disqualified for
retention in the USAR 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 deemed excess to the needs of the service or are medically
disqualified for retention 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.

15.  Title 10, US Code, Section 12731b, states that in the case of the
Selected Reserve of a reserve component who no longer meets the
qualifications for membership in the Selected Reserve solely because the
member is unfit because of physical disability, the Secretary concerned may
determine to treat the member as having met the service requirements for
retirement and provide the member with the appropriate notification if the
member has completed at least 15, and less than 20, years of qualifying
service.

16.  Army Regulation 135-180 also states in paragraph 2-3, that a 20-Year
Letter will be issued to the Reserve component Soldier within 1 year after
they complete 20 years of qualifying service for retirement.  This letter
will be issued by the Chief of the National Guard Bureau for Army National
Guard Soldiers and by the Commander of the Army Reserve Personnel Command
(AR-PERSCOM) for USAR Soldiers.  The letter, once issued, may not be
withdrawn or revoked.  The Soldier may voluntarily elect to transfer to the
Retired Reserve or be discharged from the Army.  A 15-Year letter will be
issued to a Selected Reserve member who completed at least 15 but less than
20 years of qualifying service under Title 10, US Code, Section 12731a and
12731b.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he has been denied retirement after being
told that he would receive full retirement pay and benefits.

2.  At the time of the applicant’s transfer to the Retired Reserve, he was
a Selected Reserve member assigned to an Individual Mobilization Augmentee
(IMA) unit.

3.  The evidence of record shows that the applicant was honorably released
from his IMA assignment due to medical disqualification, was assigned to
the Retired Reserve, and met the criteria of Title 10, US Code, Section
12731b.  He had completed more than 15 years of qualifying service but less
that 20 years for retirement purposes; however, there is no evidence that a
15-Year Letter was issued prior to his release.  Therefore, the applicant
is entitled to be issued a
15-Year Letter certifying eligibility for non-regular retired benefits at
age 60.

BOARD VOTE:

__LDS__  __LGH___  __PHM__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING


BOARD DETERMINATION/RECOMMENDATION:

1.  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 issuing him a 15-Year Letter
(Notification of Eligibility for Retired Pay at Age 60) certifying
eligibility for non-regular retired benefits at age 60.


2.  That upon completion of the administrative action required by Paragraph
1, above, that the Army Human Resources Command–St. Louis process the
applicant’s DD Form 108 (Application for Retired Pay Benefits) based on his
total number of qualifying years of service at the time of his transfer to
the Retired Reserve.




                                  ___ _Linda D. Simmons    __
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040010368                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050726                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |MR. SCHNEIDER                           |
|ISSUES         1.       |136.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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