RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 March 2007
	DOCKET NUMBER:  AR20060007547 


	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. Gerard W. Schwartz

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. William F. Crain

Chairperson

Mr. Edward E. Montgomery

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 14 years of qualifying service. 

2.  The applicant states, in effect, that he is currently in the U.S. Army Reserve (USAR) Control Group (Retired) and has been denied retirement at age 60.  He understood that he would not receive full pay but he should receive a portion based on the completion of 14 years of service.  He also states that he was found medically disqualified for retention in the USAR and therefore was unable to complete the required 20 qualifying years of service.  He was denied retirement at age 60.

3.  The applicant provides a copy of his separation orders in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 1 August 1991, the date of his transfer to the USAR Control Group (Retired).  The application submitted in this case is dated 19 May 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 military records show he enlisted in the USAR on 20 November 1976, for training as a watercraft operator, in military occupational specialty (MOS) 61B, in pay grade E-4, with prior military service.  His date of birth (DOB) is 22 January 1946.  He was promoted to sergeant (SGT/E-5) effective 1 March 1979. 






4.  On 24 May 1991, the Deputy Commander, Headquarters, 807th Medical Brigade, prepared a memorandum, Subject:  Determination of Retention in the USAR [the applicant].  The commander stated that the applicant’s medical records were incomplete.  However, it was clear, that the applicant had surgery for spinal fusion, L-4 to S-1.  The fusion failed.  The applicant was still wearing a brace and (a year after surgery) had not returned to work.  The prognosis was considered poor and a need for further surgery was anticipated.  Under Army Regulation 40-501, paragraph 3-14c(3), failure of bone fusion was a cause for medical unfitness for retention.  

5.  The commander also stated that although the cause of the spinal problem was surgery rather than a fracture, this paragraph could be applied here.  The cause of the spinal problem was unclear, but it followed a back injury at work.  He presumed it to be due to herniation of the nucleus pulposus, sufficiently severe to interfere with satisfactory performance of duty.  Under Army Regulation 40-501, paragraph 3-39c, this constituted medical unfitness.  The commander concluded that being in the military service and particularly on active duty would compromise this applicant's health (paragraph 3-41c) and the applicant should not be retained.

6.  On 10 June 1991, the Military Personnel Officer (MPO), Headquarters, 807th Medical Brigade, prepared a memorandum for the Commander, 829th Station Hospital, Subject:  Request for Transfer [the applicant}.  The MPO indicated that the request was returned to be processed under Army Regulation 135-178, chapter 12.  The applicant’s records were reviewed by the COSCOM (Corps Support Command) Surgeon and found to be medically unfit for retention. The applicant was to be notified of separation action in accordance with Army Regulation 135 -178, chapter 12, paragraph 12-9.  

7.  On 5 August 1991, a request for discharge was submitted by the applicant’s unit, 829th Station Hospital, through Commander, 807th Medical Brigade, under the provisions of AR 135-178, chapter 12, paragraph 12-1, requesting his separation for being medically unfit for retention, with an effective date of 1 August 1991.

8.  On 26 August 1991, the applicant elected transfer to the Retired Reserve.  He understood that transfer to this category did not automatically entitle him to pay, allowances, or other benefits unless otherwise entitled by law.  Further, completion of 20 years total service did not qualify him for retirement benefits unless service was satisfactory Federal service as defined in Army Regulation 135-180.

9.  On 4 September 1991, Orders 169-10 were prepared by Headquarters, Fifth US Army, reassigning the applicant from the 829th Station Hospital to the US Army Reserve Control Group (Retired) with an effective date of 1 August 1991.  
The reason shown on these orders is:  "medically disqualified for retention in the USAR."  He was reassigned to the USAR Control Group (Retired) in pay grade E-5.    

10.  The applicant's Summary of Retirement Points, dated 4 December 2003, shows that he had completed 14 years and 1 day 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 reassignment to the Retired Reserve.  A review of several of his RYEs (retirement year endings) show he earned less than 50 points, and these years were not qualifying years for retirement.

11.  The applicant applied for retired pay benefits in 2005, date unknown.

12.  The applicant's records contain a copy of a letter from the Chief, Transitions and Separations Branch, US Army Human Resources Command (AHRC)-St. Louis, dated 12 September 2005.  This letter was in reply to his DD Form 108 (Application for Retired Pay Benefits).  It stated that Title 10, United States Code (USC), sections 67, (now known as sections 12731 to 12737), authorizes retired pay for current and former members of the RC who reach age 60 and have completed a minimum of 20 years of qualifying service.  A further requirement was that the last 8 years of qualifying service must have been performed as a member of the RC.  The letter stated that service in an inactive Reserve section, such as the Retired Reserve, was not creditable for retirement purposes.  Since 1 July 1949, a Reserve Soldier must have earned at least 50 retirements points per year for that service to be creditable for retirement.  An audit of his military records showed that he had completed a total of 35 years, 2 months, and 2 days (up to his 60th birthday) of service both qualifying and non-qualifying; however, only 14 years and 2 days of that service was qualifying for pay at age 60.  

13.  In the processing of this case a staff advisory opinion was provided by the Supervisor, Retirement and Annuities Branch, Army Human Resources Command (AHRC)-St. Louis.  The opinion stated that Sections 12731-12737 of the Title 10, USC, authorize retired pay for RC military Service.  To be eligible for retired pay under this law, a Reserve Soldier or former Reserve Soldier upon attaining 60 years of age must have completed a minimum of 20 qualifying years 



of service.  After 1 July 1949, a qualifying year is one in which the Reserve Solider earned at least 50 retirement points.  The last 8 qualifying years must be in a RC.  The law authorizing retired pay based on service in the RC does not authorized this pay until all requirements have been fulfilled. 

14.  The military personnel records for the applicant were reviewed by their office.  The applicant was found to be medically disqualified for retention in the USAR and assigned to the USAR Control Group (Retired).  Retired points are not awarded when a Soldier is placed in the Retired Reserve.  The service member did not supply information to be awarded additional retired points.  The applicant had only 14 years and 1 day of qualifying service for retired pay at age 60.  Therefore, he did not have 20 qualifying years of service and his request must be denied.  

15.  The applicant was provided a copy of this opinion for possible comment prior to consideration of this case but no response was received.

16.  Army Regulation 135-178, paragraph 12-1, Medically Unfit for Retention, states that Reserve enlisted soldiers who are no longer qualified for retention by reason of medical unfitness under the standards of AR 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation Including Retirement) will be discharged unless they are granted a waiver of the medical disqualification or are eligible and request transfer to the Retired Reserve under Army Regulation 140-10, paragraph 6-1.

17.  Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified
and if they so request, will be transferred to the Retired Reserve.

18.  Chapter 6 of the regulation covers transfer to and from the Retired Reserve.
Paragraph 6-1 of Army Regulation 140-10 pertains to eligibility.  Subparagraph 
6-1a(8) states that assignment to USAR Control Group (Retired) is authorized for personnel medically disqualified not as a result of their own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed.  Eligible Soldiers must request transfer.




19.  Army Regulation 135-180 prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, United States Code, chapter 67, sections 1331 to 1337.  This regulation specifies, in pertinent part, that to be eligible for retired pay an individual must have attained age 60 and completed a minimum of 20 years of qualifying service, and served the last 8-years of his or her qualifying service as a Reserve Component Soldier, during the period 10 August 1956 through 4 October 1994, nor do they have to be continuous.  Subsequent to 1 July 1949, qualifying service is granted for each year of service an individual earns 50 or more retirement points.

20.  Sections 12731 through 12739 of Title 10, USC, authorize retired pay for Reserve Component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay 
at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.  This law further requires that the last         8 years of qualifying service must in a Reserve Component between the period 10 August 1956 through 4 October 1994.

21.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant completed 35 years, 2 months, and 2 days of service for longevity pay purposes and 14 years and 1 day of qualifying service for retirement pay purposes.  It is clear that he was found medically unfit for retention in the USAR, due to his medical condition.  

2.  The applicant was notified of his separation action.  His unit submitted a request for his discharge and he elected transfer to the Retired Reserve.  He understood that transfer to this category did not automatically entitle him to pay, allowances, or other benefits unless otherwise entitled by law.  Furthermore, he understood that completion of 20 years total service did not qualify him for retire benefits unless service was satisfactory Federal service in accordance with regulatory authority.

3.  The applicant was removed from an active status and was transferred to Retired Reserve due to his medical disqualification for retention in the USAR, at the age of 45 years, 6 months, and 9 days.  The applicant has surpassed his 60th birthday.  He is not entitled to return to an active status to earn additional retirement points. 
4.  The applicant 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 assignment to the Retired Reserve.  

5.  Based on the facts and circumstances of this case, the applicant is not entitled to correction of his records to show that he is entitled to retired pay and benefits.

6.  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.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 August 1991; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 31 July 1994.  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

__rn_____  __EM___  __WFC__  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.




_____William F. Crain____
          CHAIRPERSON




INDEX

CASE ID
AR20060007547
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070308
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19810801
DISCHARGE AUTHORITY
AR 140-10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
136
2.

3.

4.

5.

6.