RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060005124 


	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.  


x
	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 granted a medical retirement based on his completion of 15 years of qualifying service and medical disqualification for further service in the United States Army Reserve (USAR); and that his discharge orders and certificate reflect the fact he was a Field Artillery Officer serving in the Acquisition Corps.  

2.  The applicant states, in effect, that for the past year USAR Human Resources Command, St. Louis (HRC-St. Louis) officials repeatedly told him he was going to be medically retired given he had completed the necessary qualifying years of service and met the requirements for retirement.  He further states that although he is a Field Artillery (FA) officer serving in the Acquisition Corps, his records at HRC-St. Louis erroneously show he is an Ordnance (OD) officer.  

3.  The applicant provides the following documents in support of his application:  Self-Authored Letters; Disposition Election for Medical Disqualification; Directors Regional Soldier Support Memorandum, dated 1 June 2005; United States Army Human Resources Command, St, Louis, Missouri, Orders Number D-03-606682, dated 16 March 2006; United States Total Army Personnel Command Memorandum, dated 7 June 1989; Department of Defense Acquisition Corps Certification of Admission (DD Form 2587); United States Army Reserve Personnel Command Memorandum, dated 20 June 2003; Officer Evaluation Report (DA Form 67-9); Chronological Statement of Retirement Points; Personnel Actions (DA Form 4187); Inspector General Action Request; Record of Individual Performance of Reserve Duty Training (DA Form 1380); Academic Record; Honorable Discharge Certificate; Certificate of Release or Discharge from Active Duty (DD Form 214); Officer Record Brief; Medical Evaluation Board/Physical Evaluation Board Referral, dated 20 December 1989; Missile and Space Intelligence Center Letter, dated 12 March 2004; Results of Retention Physical Examination Memorandum Medical Records; Electronic Mail (e-mail) Messages; Acquisition Corps Information Papers; and Congressional Inquiry Response.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records shows he was initially appointed a commissioned officer in the Regular Army (RA) upon completion of the United States Military Academy (USMA) on 6 June 1979, and entered active duty in that status.  He served on active duty until 1 July 1990, at which time he was honorably discharged.  

2.  The separation document (DD Form 214) issued to the applicant on 1 July 1990 confirms he completed a total of 11 years and 26 days of active military service, and held the rank of captain (CPT).  Item 11 (Primary Specialty) shows he served as a general FA officer for 11 years and as a FA officer in the functional area of Research and Development (51A) for 2 years.  

3.  On 1 July 1990, the applicant was appointed a FA (13A) CPT in the USAR. He was promoted to major on 5 June 1992, and to lieutenant colonel (LTC) on 
4 June 1998.

4.  A Reserve Personnel Accounting System (RPAS) Chronological Statement of Retirement Points on file in the applicant's Official Military Personnel File (OMPF) shows he completed 15 years of qualifying service as of 1 July 1994, and at the time his last 4 years of qualifying service had been completed in a Reserve Component (RC).  It also shows in the nearly 11 years between 2 July 1994 and 8 March 2005, when he was determined to medically unfit for further service, he completed no qualifying years of service for retirement purposes.  

5.  On 8 March 2005, the applicant was notified that the HRC-St. Louis Command Surgeon had found him medically unfit for continued military service, and he was provided an option statement that provided him three options on the disposition of his status based on his medical condition.  These options were to be discharged, transferred to the Retired Reserve if eligible, or he could elect to have his case considered by a Non-Duty Physical Evaluation Board (PEB).  

6.  On 30 March 2005, the applicant elected to be transferred to the Retired Reserve, and submitted a request for medical retirement.   

7.  On 1 June 2005, the HRC-St. Louis Command Surgeon completed the review process and informed the Director, Regional Soldier Support Center, 
HRC-St. Louis, that the applicant had been determined to be medically unfit for continued military service.  

8.  In June 2005, officials of the 81st Regional Support Command (RSC) notified the applicant he had to submit a Personnel Action (DA Form 4187) requesting a 
15-year letter and retirement.

9.  On 8 July 2005, the applicant was notified by 81st RSC personnel officials that he was not eligible for a 15-year letter because his last 6 years of service had not been in a Reserve Component (RC), and the applicant requested the assistance of the HRC-St. Louis Inspector General (IG) to resolve this issue.    

10.  On 20 July 2005, the HRC-St. Louis Deputy IG provided a final response to the applicant's request for assistance concerning his non-receipt of his 15-year letter and retirement orders.  He informed the applicant that an inquiry into the matter revealed that he did not meet the service requirement for issuance of a 15-year letter in accordance with Title 10 of the United States Code, Section 12731 (10 USC 12731).  

11.  HRC-St. Louis Orders Number D-03-606682 directed the applicant’s discharge from the USAR, effective 16 March 2006.  

12.  10 USC 12731 (Age and Service Requirements) provides the legal authority for 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.  In the case of a person who completed the 20 years of qualifying service requirement before the end of the 180-day period beginning on the date of the enactment of the National Defense Authorization Act for Fiscal Year 2005, he or she must have performed the last 6 years of qualifying service while a member of a RC, but not while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve, except that in the case of a person who completed the service requirements before October 5, 1994, the number of years of such qualifying service under this paragraph shall be 8.  

13.  Section 12731a provided the temporary authority to grant non-regular retirement to members who completed at least 15, but less than 20 years of qualifying service.  It states, in pertinent part, that a member is eligible to receive non-regular retirement and be issued a 15-year letter, if prior to 5 October 1994, the member has completed 8 qualifying years of service while in a RC; or on or after 5 October 1994, but before 26 April 2005, they have completed 6 qualifying years of service while in a RC. 

14.  10 USC 12731b (Special Rule for Members with Physical Disabilities not Incurred in the 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, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that he be issue a Notification of Retirement Eligibility based on completion of at least 15 years because of his disability disqualification was carefully considered.  However, while the law does allow a member of the Selected Reserve who is disqualified from further service due to physical disability to be issued an eligibility notification and be entitled to retired pay based on completion of at least 15, but less than 20 years of service, all other requirements of the law remain in effect.

2.  By law, in order to qualify for retired pay due to physical disability based on completion of at least 15 years of qualifying service, based on the date the applicant completed his 15 years of qualifying service, he is required to have completed his last 8 qualifying years in a RC.  

3.  In this case, the RPAS on file confirms the applicant completed 15 years of qualifying service for retirement purposes on 1 July 1994, at which time he had completed his last 4 years in a RC.  His RPAS further shows that in the nearly 
11 years between 2 July 1994 and 8 March 2005, when he was medically disqualified, the applicant completed no qualifying years of service for retirement purposes.  Given the applicant did not complete the last 8 years of his 
15 years of qualifying service in a RC, he is not eligible to receive a 15-year notification of eligibility or retired pay at age 60.

4.  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.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x _  __x__  __x__  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.




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          CHAIRPERSON




INDEX

CASE ID
AR20060005124
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/27
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.