RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         19 September 2006
      DOCKET NUMBER:  AR20060000687


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E, Anderholm            |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Thomas M. Ray                 |     |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 issued a 15-Year
retirement eligibility letter based on his medical disqualification.

2.  The applicant states, in effect, he was medically disqualified for
retention and should have been issued a 15-Year retirement eligibility
letter.

3.  The applicant provides the following documents in support of his
application:  Chronological Statement of Retirement Points (DARP Form 249-2-
E); United States Army Reserve Personnel Center (ARPERSCEN) Orders Number 4-
12, dated 8 January 1990; and ARPERSCEN Orders Number C-05-800893, dated 17
May 1990.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 12 December 1995, the date of his discharge from the
United States Army Reserve (USAR).  The application submitted in this case
is dated
5 January 2006.

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 record confirms he served on active duty in the Regular
Army (RA) from 16 September 1964 through 28 August 1968, at which time he
was transferred to the United States Army Reserve (USAR).  He served in the
USAR through 28 August 1970, at which time he had a break in service.  He
reentered the USAR on 10 August 1971, and served until 9 June 1972, at
which time he had another break in service.  On 23 June 1976, he entered
the Army National Guard (ARNG), where he served until 22 June 1978.  He
reentered the USAR on 23 June 1978, and he served in this status until
being transferred to the Retired Reserve.

4.  A Retirement Points Summary on file confirms the applicant completed a
total of 15 years, 11 months, and 13 days of qualifying service for
retirement, and that he served the last 13 of his qualifying years in a
Reserve Component.
5.  Headquarters, 1st United States Army Orders Number 4-12, dated 6
January 1990, directed the applicant's transfer to the Retired Reserve,
effective 8 January 1990.  The reason cited for the transfer was "Medical
Disqualification for Retention".

6.  A medical waiver was approved on the applicant, and ARPERSCEN Orders
Number C-05-800893 authorized the applicant's transfer from the Retired
Reserve to the Individual Ready Reserve (IRR).

7.  On 12 December 1995, ARPERSCEN Orders Number D-12-507876, directed the
applicant's honorable discharge from the USAR.  There is no indication that
the applicant was denied continued service based on his medical condition
at this time.

8.  Title 10 of the United States Code, Section 12731 (10 USC 12731)
provides the legal authority and age and service requirements for non-
regular retirement.  It states, in pertinent part, that a member is
eligible to receive retired pay at age 60 if they have completed 20
qualifying years of service for retirement, of which the last eight were
performed in a RC.

9.  10 USC 12731b provides the legal authority and special rule for members
with physical disabilities not incurred in line of duty.  It states, in
pertinent part, that in the case of a member of the Selected Reserve of a
RC 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 treat the member as having met the service
requirements for non-regular retirement if the member has completed at
least 15, and less than 20, years of qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant completed a total of 15
years, 11 months, and 13 days of qualifying service for non-regular
retirement.  It further shows that he was medically disqualified for
retention and transferred to the Retired Reserve on 8 January 1990;
however, he was granted a waiver, which resulted in his transfer from the
Retired Reserve to the IRR on 10 May 1990.

2.  On 12 December 1995, the applicant was honorably discharged from the
USAR.  There is no indication that this discharge was based on the
applicant being medically disqualified for retention.  Absent any evidence
that his discharge was based on his medical disqualification for further
service, there is an insufficient evidentiary basis to support granting the
requested relief.

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

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 December 1995.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on
11 December 1998.  He failed to 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

___JEA  _  __ML ___  ___TMR_  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.




                                  _____James E. Anderholm __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000687                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/09/19                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1995/12/12                              |
|DISCHARGE AUTHORITY     |AR 135-178                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |136.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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