RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 April 2007
	DOCKET NUMBER:  AR20060009174 


	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, correction of his records to show he completed 20 years of qualifying service for retired pay at age 60 and transferred to the Retired Reserve.  He also requests receipt of his notification of eligibility for retired pay at age 60 (20-Year Letter).

2.  The applicant states he did not get his 20-Year Letter.  He states, in effect, that his Chronological Statement of Retirement Points shows 20 or 28 years total service (qualifying and nonqualifying) for longevity pay purposes.  

3.  The applicant provides a copy of his separation orders, dated 11 February 1991; his Chronological Statement of Retirement Points, dated 7 September 1991; and his DD Form 214 (Report of Separation from Active Duty) for the period ending 8 April 1977.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred on 11 April 1996.  The application submitted in this case is dated 19 June 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 was born on 28 November 1950.  He enlisted in the Regular Army on 9 July 1971 and served until he was released from active duty on
8 April 1977.  He was transferred to Company C, 365th Engineer Battalion, Combat Heavy, Scranton, Pennsylvania on the following date.

4.  He reenlisted in the U.S. Army Reserve (USAR) on 11 July 1977 and continued to serve in the Reserve component through three reenlistments.  He last reenlisted on 18 May 1986 for 6 years, making his expiration term of service (ETS) 17 May 1992.  He was promoted to staff sergeant (SSG) on 15 September 1987.

5.  The applicant was counseled on 21 July 1990 regarding a request for transfer to another unit.  His commanding officer informed him that company level could not approve a request for transfer.  It was recommended that the applicant stay the last year and that a transfer at this point would put his retirement in jeopardy. The commanding officer indicated the applicant had “19 good years.”

6.  The applicant’s service records contain a Standard Form 600 (Chronological Record of Medical Care) which shows he was evaluated on 6 February 1991 for alcoholism and a mood disorder.  The medical officer indicated the applicant was non-deployable and this condition was permanent.  The medical officer also indicated the applicant did not meet retention standards under the provisions of Army Regulation 40-501, chapter 3, section 33.

7.  The applicant was ordered to active duty on an unknown date.  Headquarters, First U.S. Army and Fort Meade, Maryland Orders 28-47, dated 11 February 1991, released the applicant from duty, not by reason of physical disability, effective 13 February 1991.  He was assigned to Headquarters, 79th Army Reserve Command (ARCOM), Willow Grove, Pennsylvania on the following date. The orders indicated the applicant’s medical condition which was discovered during mobilization processing prevented him from meeting mobilization requirements and deployment requirements.  The orders also indicated that the requirement for permanent profile, Military Occupational Specialty (MOS) Medical Retention Board (MMRB) or Medical Evaluation Board (MEB) action would be made by gaining unit.

8.  A 15 April 1991 memorandum from Headquarters, 79th ARCOM, Willow Grove, Pennsylvania indicated the applicant was found disqualified for retention. The memorandum indicated that if the applicant was medically disqualified, he should be transferred to the Retired Reserve in accordance with (IAW) Army Regulation 140-10 or discharged IAW Army Regulation 135-175 or Army Regulation 137-178.  A handwritten note on the memorandum indicated the applicant had a psychiatric disorder.

9.  The applicant’s Chronological Statement of Retirement Points, dated 7 September 1991, shows he completed 19 years and 9 months of qualifying service for retired pay at age 60 and 20 years, 1 month, and 28 days total service (qualifying and nonqualifying service) for longevity pay purposes as of retirement year ending 8 April 1991.

10.  A letter, dated 13 September 1991, from Headquarters, 79th ARCOM, Willow Grove, Pennsylvania indicated the applicant’s medical records and reports had been reviewed to determine his fitness for further retention in the USAR.  After review, he was found to have a medical condition which rendered 
him medically disqualified for further retention in the USAR.  The applicant was requested to elect one of the following options prior to actual discharge action:  (a) “I, ___________, elect to be discharged from the USAR due to a medical condition which renders me medically disqualified for retention”; (b) “I, _____________, elect to be transferred to the USAR Control Group (Retired) IAW paragraph 6-1a(8), AR 140-10”; or (c) “I, ___________, request consideration of a waiver for the medical disqualification by Commander, ARPERCEN, St. Louis, MO.  If my request for waiver is not favorably considered, I then elect discharge __________ or transfer to the Retired Reserve _________.  I understand that if I do not initial an alternative to waiver, I will be involuntarily discharged without further notice if the waiver is disapproved.”  He elected to be discharged from the USAR due to a medical condition which rendered him medically disqualified for retention.  

11.  Headquarters, 79th ARCOM Orders 121-03, dated 22 November 1991, released the applicant from Headquarters, 79th ARCOM, Willow Grove, Pennsylvania on 14 February 1991 (sic) and reassigned him to Company C, 365th Engineer Battalion, Scranton, Pennsylvania.  The orders indicated the reason as “Return to Home Unit to Process Twenty Year Letter, then Transfer to Retired Reserve, Not Sufficient Evidence to Require Permanent Profile or MMRB.”

12.  The applicant was counseled on 21 April 1992 and informed that a transfer to the IRR would allow him the opportunity to achieve another year toward retirement.  He was informed that he must get 50 points within a year to qualify as a good retirement year.  The applicant acknowledged that he had been counseled on 21 April 1992.  He requested to reenlist with concurrent assignment to the IRR and to receive pay eligibility upon completing another year of qualified service.  

13.  The applicant completed a DA Form 4651-R (Request for Reserve Component Assignment or Attachment) on 21 April 1992 to request transfer to the Individual Ready Reserve (IRR).  This document indicated he would reenlist with subsequent transfer to the IRR Control Group (Reinforcement) per Army Regulation 140-10, paragraph 4-11.  

14.  The applicant reenlisted in the USAR on 21 April 1992 for a period of            3 years.  A civilian, grade GS-6, signed the enlistment contract accepting him for enlistment.  He was subsequently transferred to the IRR Control Group (Reinforcement).  

15.  Headquarters, 79th ARCOM Orders 086-05, dated 29 July 1992, released the applicant from Company C, 365th Engineer Battalion, Scranton, Pennsylvania and reassigned him to the USAR Control Group (Reinforcement) effective 29 July 1992.
16.  The applicant was discharged from the USAR on 11 April 1996 by Department of the Army, USAR Personnel Center Orders D-04-635558, dated 
11 April 1996.

17.  The applicant’s Chronological Statement of Retirement Points, dated 14 July 2006, shows he did not receive 50 retirement points or more for the retirement years ending (RYEs) 8 April 1992, 8 April 1993, 8 April 1994, 8 April 1995, or      8 April 1996.  During RYE 8 April 1992, he earned 17 retirement points              (2 inactive duty (IDT) and 15 membership points.

18.  In the processing of this case, a staff advisory opinion was obtained from the 99th Team Supervisor, Eastern Region, U.S. Army Human Resources Command, St. Louis, Missouri.  The opinion stated the applicant completed 19 years, 9 months, and 0 days of qualifying service for retirement and must complete one more year of qualifying service (earn 50 retirement points) to receive his 20-Year Letter.  The applicant received one-on-one counseling explaining to him that a transfer to the IRR would allow him the opportunity to achieve another year toward retirement.  He was informed that he must get 50 points within a year to qualify as a good retirement year.  The opinion stated the applicant signed the statement [counseling] on 21 April 1992 with the remark, “I request to reenlist with concurrent assignment to the IRR and receive pay eligibility upon completing another year of qualified service.”  The Team Supervisor indicated she had spoken with the applicant on 17 July 2006 and the applicant stated he had attempted to get correspondence courses but he never received them.  The applicant confirmed he did not obtain an additional good year toward retirement.  

19.  The advisory opinion further stated that the applicant was medically evaluated on 6 February 1991 while he was mobilized for Operation Desert Shield/Desert Storm.  He was determined as “non-deployable, the condition is permanent.”  Orders were published on 11 February 1991 which released him from active duty, “not by reason of physical disability,” and reassigned him to Headquarters, 79th ARCOM.  The opinion pointed out that the applicant did not have enough years to obtain a 20-Year Letter or to be assigned to the Retired Reserve.  The applicant’s command did not have his medical records at that time.  The opinion stated the applicant reenlisted into the IRR Control Group but 
the reenlistment contract is questionable due to the GS-6’s signing of the contract.  The applicant should have been extended with the unit to obtain this medical determination and not reenlisted into the IRR.  The advisory opinion stated that further evaluation is required to determine if the applicant received 
due process regarding obtaining an evaluation for permanent profile, MMRB or MEB, and whether the reenlistment contract was authorized and lawful.  This office recommended the applicant be considered for early retirement based on medical disqualifications.  

20.  On 7 December 2006, a copy of the advisory opinion was forwarded to the applicant for comments.  He concurred with advisory opinion on 12 December 2006.

21.  Army Regulation 140-111 (U. S. Army Reserve Reenlistment Program) states, in pertinent part, that the oath of enlistment or extension will be administered by a commissioned officer or a commissioned warrant officer.

22.  Title 10, U. S. Code, sections 12731 through 12739 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.  

23.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) states in pertinent part that if a Soldier is separated or removed from an active status during a retirement year, the Soldier may be credited with a proportionate maximum number of inactive duty training (IDT) points for that year as shown in appendix A (16 for a period of service of  92 days).  Appendix B shows the minimum number of points required for a partial year or qualifying service (13 for a period of service of 92 days).  Appendix C shows the number of membership points authorized for a partial year (4 for a period of service of 92 days).

24.  Title 10 U.S. Code, section 12731a was the temporary special retirement qualification authority.  A revision, dated 5 October 1994, provided that, during the period 1 October 1991 through 30 September 1999 (later extended to 31 December 2001) a member of the Selected Reserve who has completed at least 15, and less than 20, years of qualifying service and who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, and upon the request of the member, may be transferred to the Retired Reserve.  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 to Soldiers who attained 15 years of retirement eligibility after 1 October 1991.   

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was medically evaluated on 6 February 1991 for alcoholism and for having a mood disorder.  
2.  Orders were published on 11 February 1991 which released the applicant from active duty and indicated that his medical condition had prevented him from meeting mobilization requirements and deployment requirements.  

3.  The evidence of record shows the applicant was found medically disqualified for retention and, around September 1991, he elected to be discharged from the USAR due to a medical condition which rendered him medically disqualified for retention.  

4.  Orders show the applicant was transferred back to his home unit, Company C, 365th Engineer Battalion, Scranton, Pennsylvania.  Although these orders indicate he was returned to his home unit to process his 20-Year Letter, he had completed only 19 years and 9 months of qualifying service for retired pay.  Therefore, he was not eligible for a 20-Year Letter.  These orders also indicated there was not sufficient evidence to require a permanent profile or an MMRB.

5.  The evidence of record shows the applicant then submitted a written request to be transferred to the IRR in April 1992 to allow him the opportunity to achieve another “good” retirement year of qualified service.  He reenlisted to accomplish this transfer.  As a result of his reenlistment, orders were published which transferred him from his Reserve unit to the USAR Control Group (Reinforcement) on 29 July 1992.  However, it appears he was accepted for enlistment by an unqualified individual.  Therefore, his reenlistment was erroneous and should be voided.

6.  Based on the applicant’s reenlistment on 21 April 1992 in good faith it would now be appropriate to correct his record to show he was extended in the Selected Reserve in April 1992 (instead of reenlisting) for 3 months and then separated from the Selected Reserve due to ETS.  The preponderance of the evidence appears to show he was medically unfit for retention in the Selected Reserve after February 1991.  As the advisory opinion pointed out, the applicant’s command did not have his medical records at that time (i.e., when he reenlisted and was transferred to the IRR), and he should have been extended with the unit to obtain a medical determination and not reenlisted into the IRR.

7.  There is insufficient evidence at this point in time to determine whether the applicant would have been found to be medically fit or unfit.  However, had he been retained in the Selected Reserve for an additional 3 months, and separated upon his ETS of 27 August 1992 (a period of 92 days), and if a sufficient number (34) of his excess retirement points were shifted to RYE 8 April 1992, he would have been eligible to receive a 20-Year Letter.  Any reasonable doubt concerning his service in the Selected Reserve for an additional 3 months should be resolved in his favor.    

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 11 April 1996; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 10 April 1999.  The applicant did not file within the 3-year statute of limitations; however, he and the advisory opinion have provided a compelling explanation 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 

x_____ x______  x______  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  voiding his enlistment of 21 April 1992 and his subsequent transfer to the Individual Ready Reserve;

     b.  showing he completed a properly executed 3-month extension of enlistment on 21 April 1992, making his ETS 17 August 1992;

     c.  showing he was discharged from the U. S. Army Reserve effective           17 August 1992 upon his ETS and crediting him with a partial retirement year;

     d.  shifting sufficient excess retirement points to retirement year ending          8 April 1992 to provide him with a qualifying year of service; and

     e.  issuing to him a 20-Year Letter with instructions on how to apply for retired pay.

2.  The Board further determined that the evidence 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 showing he was transferred to the Retired Reserve.




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          CHAIRPERSON




INDEX

CASE ID
AR20060009174
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070419
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
Mr. Schwartz
ISSUES         1.
136.0200
2.

3.

4.

5.

6.