RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 NOVEMBER 2006
      DOCKET NUMBER:  AR20060000924


      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. Rene’ R. Parker               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Mr. Donald Steenfott              |     |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, a 15-year retirement and waiver of
the requirement for his last six qualifying years to be in a Reserve
Component (RC).

2.  The applicant states that under the provisions of Public Law 103-337,
he should be eligible for a RC retirement.  He states that he has over 22
years of qualifying active RC service and has served the last 3 months in
the Washington Army National Guard.  The applicant states that he was
diagnosed with chronic lower back pain with bulging disc on 30 May 2001 and
found unfit by the Medical Duty Review Board (MDRB) because of physical
disability for continued service in the RC.

3.  The applicant provides a United States Army Reserve (USAR) and Army
National Guard (NG) statement of retirement Points, MDRB documentation,
Veterans Affairs (VA) rating and documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 20 August 2001, his date of discharge from the Washington
Army National Guard.  The application submitted in this case is dated  21
August 2001 but was received by this office on 20 January 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 served on active duty in the Regular Army for 17 years, 6
months, and 4 days.  He was released from active duty and transferred to
the USAR Control Group (Reinforcement)on 3 April 1992.  On 7 April 1994 the
applicant enlisted in the Washington Army National Guard.

4.  The applicant’s record shows that on 6 May 2001, the applicant’s
commander requested a MDRB to determine if the applicant was capable of
performing his military duty, maintaining deployability and eligibility for
continued military service.  The commander explained that the applicant
transferred to his unit on 28 February 2001 with a 40 percent disability
rating from VA and was being reevaluated for an increase to 60 percent.
The commander said he believed it would be in the best interest of the unit
and the applicant to declare him unfit for further military service.

5.  On 30 May 2001, the applicant was examined for an administrative
discharge for injuries that occurred prior to his transfer to the
Washington Army National Guard.  The medical personnel concurred with the
command’s recommendation for discharge.

6.  On 20 June 2001, the MDRB determined that the applicant was not
qualified for continued service in the Washington Army National Guard.  The
MDRB said that the applicant could appeal the findings of the board by
forwarding record proof from his private physician that the disqualifying
condition no longer exists, or that corrective medical procedures were
scheduled to correct the condition.  Additionally, the applicant was told
he could request, in writing, that his case be reviewed by the National
Guard Bureau Surgeon, prior to final determination by the Adjutant General.
 He was instructed that any record of proof must be submitted by 20 August
2001 or separation procedures would be accomplished.

7.  On 20 August 2001, the Enlisted Branch, Noncommissioned Officer in
Charge, stated that the applicant would be discharged on 20 August 2001 and
was not eligible for a 15-year disabled Reserve retirement.  He also said
that the applicant could apply for an exception to policy however; the
application had to be done in a timely manner based upon the fact that the
eligibility for the early retirement expired on 31 December 2001.

8.  On 3 September 1998, VA rendered a decision concerning the applicant’s
issue of chronic low back pain with sciatica.  The documentation from VA
shows that the applicant was originally rated at 20 percent disability for
chronic low back pain that was increased to 40 percent.  The VA stated that
the overall evidence of record warranted an increased evaluation from 20 to
40 percent based on the evidence of recurrent attacks of severe vertebral
disc disease.  However, the evidence does not show pronounced disability as
required for the next higher 60 percent evaluation.

9.  The USAR Statement of Retirement Points, dated 10 February 2006, shows
that the applicant had 16 years, 11 months and 15 days of qualifying
service for retirement.  The last 11 months and 15 days was earned from 30
September 1991 to 29 September 1992.  The applicant received 15 membership
points each year as a USAR member from 30 September 1992 to 29 September
1995.

10.  The Army National Guard Current Annual Statement shows the applicant
entered the NG on 7 April 1994 and had over 22 years of qualifying service
from 1974 to 2001.  However, he was only credited with 5 qualifying years
while assigned to the Army National Guard during the following periods of
service:  1 qualifying year from April 1994 to April 1995, with 61
qualifying points; 3 qualifying years from April 1996 to April 1999 with
56, 57, and 50 qualifying points earned for each year, respectively; and 1
qualifying year from April 2000 to April 2001 with 50 qualifying points
earned.  The applicant did not receive credit for a qualifying year during
the period April 1995 to April 1996 and received 48 retirement points.  He
also was not credited with a qualifying year from April 1999 to April 2000
and received 43 qualifying points.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) states, in effect, that Reserve Component Soldiers will be
separated from the Reserve when they no longer meet medical retention
standards.  Such separation will be without benefits if the unfitting
condition was not incurred or aggravated as the proximate result of
performing annual training, active duty for training, or inactive duty
training.

12.  The National Defense Authorization Act for Fiscal Year 1995 (Public
Law 103-337) amended Title 10, United States Code, section 12731a.  The
modification allows Reserve component Soldiers who are involuntarily
separated on or after 23 October 1992 because of medical unfitness to elect
transfer to the Retired Reserve or Reserve retirement pay at age 60 based
on a minimum of 15 years of qualifying service while a member of the Active
Reserve.

13.  Additionally, Chapter 1223, in pertinent part, states for an USAR or
National Guard member to be eligible for retired pay at age 60, he or she
must have performed the last six years of qualifying service while a member
of the Active Reserve.

14.  Army Regulation 135-180 implements statutory authorities governing the
granting of retired pay to Soldiers and former Reserve Component Soldiers.
Paragraph 2-1 of that regulation states, in pertinent part, that to be
eligible for retired pay, an individual need not have a military status at
the time of application, but must have attained age 60, completed a minimum
of 20 years of qualifying service, and served the last 6 years of his
qualifying service as a Reserve component Soldier.

15.  Paragraph 2-8 of that same regulation describes qualifying service, as
pertains to this case, as service performed in an active status in a
Reserve component or in active federal service.  After 30 June 1949, a
reservist must earn a minimum of 50 retirement points each retirement year
to have that year credited as qualifying service.  When a person is in an
active status for a period less than a full retirement year, a minimum
number of retirement points are required to be earned in order to have that
period credited as qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant was determined unfit for
continued service prior to qualifying for retirement benefits at age 60.
He only had 5 of the required last 6 years of qualifying service as a
Reserve Component Soldier.

2.  Records further show that during April 1999 to April 2000 he earned 43
points, just seven points shy of earning the minimum points necessary to be
credited with a qualifying year.  However, during the period April 1994 to
April 1995 he was credited with 61 qualifying points.  Therefore, in the
interest of equity, it would be appropriate to transfer 7 of those
qualifying points and add them to the 43 points he earned in retirement
year ending April 2000 making this year a qualifying year, thereby
entitling the applicant to retirement benefits at age 60.

3.  Further, a review of the applicant’s records indicate that he had 22
qualifying years of service and therefore he should be entitled to a 20-
year retirement instead of the 15-year retirement requested.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 August 2001; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on          20 August 2004.  The applicant did not file
within the 3-year statute of limitations; however, based on the available
evidence, it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___LS  __  __PM___  ___DS __  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all State Adjutant General
and  Department of the Army records of the individual concerned be
corrected by:

      a.  transferring 7 retirement points from retirement year ending
3 April 1995 to retirement year ending 3 April 2000; thereby, resulting in
his eligibility for retired pay at age 60; and

      b.  issuing the applicant a 20-year eligibility letter for retired
pay at age 60.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
a 15-year retirement.




                                  _____Linda Simmons_______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060000924                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061205                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIAL GRANT                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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