RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      29 September 2005
      DOCKET NUMBER:  AR20040011230


      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. Stephanie Thompkins           |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. Leonard C. Hassell            |     |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, transfer to the Retired Reserve with
entitlement to retired pay.

2.  The applicant states that he was examined at the Community Mental
Health Service at Fort Dix, New Jersey, on 27 September 1990.  He was
diagnosed with post traumatic stress disorder (PTSD) and subsequently
discharged from the ARNG after 18 1/2 years of service.  He appealed his
case to the Department of Veterans Affairs (VA) for service connected
disability with entitlement to lost earnings per month and a military
pension upon reaching age 60.  He received a letter from the VA stating
that his appeal was granted.  When he recently inquired with the New York
(NY) ARNG retirement center he was advised that they could not grant him a
retirement and he would have to appeal to the Secretary of the Army.

3.  The applicant provides copies of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge), his Report of Mental Health
Evaluation, his ARNG Report of Separation and Record of Service, three
letters from the VA, a copy of his VA Appeal to Board of Veterans Appeal,
and his ARNG Retirement Points History Statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 3 December 1990, the date of his separation from the NYARNG.
The application submitted in this case is dated 30 November 2004.

2.  Title 10, U.S. Code (USC), 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 show that he was inducted in the Army
of the United States as a private, pay grade E-1, on 7 June 1967.

4.  He was released from active duty as a specialist, pay grade E-4, on
6 June 1969.  He was credited with 2 years total active service.  He was
transferred to the Unites States Army Reserve (USAR) Control Group (Annual
Training).  He was separated from the USAR at the expiration of his term of
service on 1 June 1973.

5.  He enlisted in the NYARNG on 22 August 1974.  He was promoted to
sergeant first class, pay grade E-7, on 1 June 1984.

6.  On 27 September 1990, the applicant underwent a mental health
evaluation at the request of his command.  The applicant was diagnosed with
acute anxiety, headaches, and PTSD.  The report also includes a statement
that the Soldier was psychologically unfit for deployment.  The evaluation
recommended that the applicant be denied access to weapons, medications,
sharp objects, and that he be supervised closely.  The evaluation also
recommended follow-up care if recommended through the Community Mental
Health Service Clinic or other Veteran Agencies.

7.  He was separated from the NYARNG on 3 December 1990 and transferred to
the USAR Control Group (Retired).  He was credited with 16 years, 3 months,
and 12 days total active service.

8.  On 30 July 1991, the VA advised the applicant that his claim was denied
for service-connected disability compensation for nervous condition claimed
as PTSD.  The applicant was also advised that his service medical records
were negative for any indication of a nervous condition nor was PTSD
verified.  The applicant appealed the VA decision stating that he was
examined at the Community Mental Health Services at Fort Dix on 27
September 1990 and was diagnosed as suffering from PTSD and subsequently
discharged from the ARNG after 18 1/2 years of service.

9.  On 20 July 1992, the VA advised the applicant that his claim for
service connected disability compensation for PTSD and all benefits sought
on appeal were considered and granted.  The applicant was granted a service
connected disability rating of 30 percent.

10.  The applicant's ARNG Retirement Points History Statement, dated
14 October 2004, shows that as of his retirement year ending 3 December
1990, he was credited with 18 years, 3 months, and 12 days creditable
service for retired pay.

11.  The applicant reached his 60th birthday on 6 July 2005.

12.  In the processing of this case, an advisory opinion was requested of
the Chief, Personnel Division, Departments of the Army and the Air Force,
National Guard Bureau (NGB).  The Chief, Personnel Division, provided a
summary of the applicant's service and specified the USC pertinent to the
applicant's retirement issue.  The NGB, Personnel Division, recommended
approval of the applicant's request for retirement pension because he does
meet the regulatory requirements for retired pay.  The Personnel Division
also recommended the NYARNG prepared a 20-year letter for the applicant.
The advisory opinion was coordinated with the Personnel Policy and
Readiness Division (NGB) and the Personnel Policy and Readiness Division
concurred with the recommendation of approval, stating that the Soldier
should not have been discharged with 18 years of service.

13.  The advisory opinion was forwarded to the applicant for
acknowledgement/
rebuttal on 6 June and he concurred on 13 June 2005.

14.  Public Law 103-337, 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 through 31 December 2001).
Eligibility is based on a minimum of 15 years of qualifying service toward
Reserve Components retirement.  Title 10, USC, section 12731a(a)(1) was
amended to extend the Early Reserve Retirement Eligibility for Disabled
Members to the period beginning on 23 October 1992 and ending 1 October
1999 to Soldiers who attained 15 years of retirement eligibility after 1
October 1991.

15.  The authority provided by Title 10, USC, section 12731b, currently
exists as a force reduction/transition initiative in section 12371a(c)(3)
for the period beginning 23 October 1992 and ending 30 September 2001 for
those members who completed at least 15 years of service as of 1 October
1991.  The intent of the new subsection was to make the authority
permanent.  It is not "retroactive" beyond the effective date (23 October
1992) already provided for.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the advisory opinion provided by the NGB, the change in
the Early Reserve Retirement Eligibility for Disabled Member law does not
apply in this case.  The applicant was discharged prior to enactment of the
law authorizing early retirement.

2.  The original law which allowed early Reserve retirement for physical
disability became effective 23 October 1992.  The applicant was separated
on 3 December 1990.  The new law did not make the policy retroactive; it
only continued it on a permanent basis.

3.  While the circumstances of this case are unfortunate, it is concluded
that no error or injustice has occurred.
4.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

______  ______  ________          GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LE___  __LH____  __PS____ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _Lester Echols________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011230                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/29                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.00                                  |
|2.                      |136.02                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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