RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 August 2006
      DOCKET NUMBER:  AR20050010057


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Dean A. Camarella             |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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, correction of his records to show
that he was entitled to retired pay at age 60 with completion of 18 years
of qualifying service and that he be issued an 18 year letter due to
separation for a medical condition which impacted his ability to make
personal decisions.

2.  The applicant states that prior to his discharge, he was diagnosed as
having a brain allergy which affected his medical and personal decisions.
Due to this medical condition, he requested to be transferred to the
Individual Ready Reserve (IRR) in 1991 from the Alabama Army National Guard
(ALARNG).

3.  The applicant provides a copy of his National Guard Bureau (NGB) Form
22 (Report of Separation and Record of Service), a copy of his separation
orders, and a copy of his Honorable Discharge Certificates dated 29 October
1990 and 12 September 1991, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 29 October 1990, the date of his termination of Federal
Recognition. The application submitted in this case is dated 27 June 2005.

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 are not available to the Board for the
period 27 May 1982 to 12 September 1991.  This case is being considered
using the applicant's NGB Form 22 and Honorable Discharge Certificate,
dated 12 September 1991; and his separation orders, dated 16 November 1990.


4.  The applicant's military records show he was appointed in the ALARNG in
the rank of major on 27 May 1982, with prior commissioned service.  He was
promoted to lieutenant colonel (LTC/O-5) effective 24 May 1983.  His date
of birth (DOB) is 23 May 1934.

5.  The applicant's records contain a copy of his Standard Form 88 (Report
of Medical Examination), dated 19 September 1985, which shows that he was
administered an annual medical examination.  He was diagnosed as having a
history of allergy manifested by dizziness.  He was found not qualified for
promotion and retention and was issued a 111211 physical profile.  There is
no evidence of record that the applicant requested a separation medical
examination and his complete medical records are unavailable for review.

6.  All the documents containing the facts and circumstances surrounding
the applicant's termination of Federal Recognition are not present in the
available records.  However, the applicant submitted a copy of his NGB Form
22 which shows that on 29 October 1990, he was separated from the ALARNG
under the provisions of National Guard Regulation (NGR) 635-100, paragraph
5a(7) and (TAG)-AL (the State Adjutant General-Alabama), Orders Number 320-
061, dated 16 November 1990.  He was transferred to the United States Army
Reserve (USAR).  He completed 18 years and 22 days of total service for
basic pay purposes.  The orders indicate that upon termination of Federal
Recognition that he would become a member of the USAR.

7.  The applicant's Summary of Retirement Points shows he completed
11 years, 10 months, and 24 days of qualifying service for retirement
purposes.
He was not issued, nor eligible to have been issued, a notification of
qualification for retired pay at age 60 (20-Year Letter) prior to his
discharge.

8.  National Guard Regulation 635-100 (Termination of Appointment and
Withdrawal of Federal Recognition) prescribes the policies and procedures
governing the separation of commissioned officers of the ARNG.  Paragraph 5
pertains to criteria for termination of State appointment.  Subparagraph
5a(7) states that the appointment of an Army National Guard officer should
be terminated upon acceptance of a commission or appointment in another
Armed Force, US Public Health Service, Environmental Science Services
Administration, US Military Academy, US Naval Academy, US Air Force
Academy, or US Coast Guard Academy, or upon enlistment in the National
Guard.  These actions are normally a vacation of appointment.

 9.  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.

10.  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 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 and ending on 1 October
1999 to Soldiers who attained 15 years of retirement eligibility after
1 October 1991.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that
the applicant's administrative separation was accomplished in compliance
with applicable regulations with no procedural errors, which would tend to
jeopardize his rights.

2.  The applicant's record contains a properly constituted NGB Form 22.
This document identifies the reason and characterization of the discharge
and the Board presumes Government regularity in the discharge process. 

3.  The evidence of record shows the applicant was separated on 29 October
1990 from the ALARNG under the provisions of NGR 635-100, due to
termination of his Federal Recognition.

4.  The applicant is approximately 72 years old and it has been over
15 years since his separation from the ALARNG.  His summary of retirement
points shows that he had completed 11 years, 10 months, and 24 days of
qualifying service for retirement purposes.

5.  The applicant alleges that he was diagnosed as having a brain allergy
which affected his medical and personal decisions.  However, due to his
medical condition, he requested transfer to the IRR in 1991 from the
ALARNG.   There is no evidence to show that he was recommended for
appearance before a Medical Evaluation Board (MEB) or any form of physical
disability processing prior to his discharge from the ALARNG.

6.  Based on the evidence provided, the applicant is not entitled to an
18 year retirement letter or entitled to retired pay at age 60 with
completion of 18 years and 22 days of service for basic pay purposes.

7.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 October 1990; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 28 October 1993.  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

_RTD ___  _r______  __DAC __  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.




                                  ____Richard T. Dunbar_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050010057                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060817                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19901029                                |
|DISCHARGE AUTHORITY     |AR   NGR 635-100                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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