RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 December 2006
      DOCKET NUMBER:  AR20060009375


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Peter Fisher                  |     |Chairperson          |
|     |Mr. Thomas Ray                    |     |Member               |
|     |Mr. Jeffrey Redmann               |     |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 he
completed 20 years of qualifying service for retired pay at age 60 due to
his medical condition.

2.  The applicant states that he had a heart attack after he served 16
years and was transferred to the Individual Ready Reserve.  He states that
he had a medical reason for not completing the required 20 years.  He
believes that he should receive something based on his retirement points.

3.  The applicant provides a copy of his medical documents from St. John’s
Regional Medical Center.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 12 December 1995.  The application submitted in this case is
dated 6 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 15 August 1946.  He enlisted in the Regular
Army on 26 February 1964 and served on active duty until he was discharged
on
26 March 1971.

4.  After a break in service, the applicant enlisted in the Army National
Guard
on 11 July 1980.  He was discharged from the Army National Guard on
21 September 1989 under the provisions of National Guard Regulation 600-
200, paragraph 8-27i based on the Soldier’s request and transferred to the
“USAR Control Group (IRR).”  He enlisted in the U.S. Army Reserve on 22
September 1989 for a period of six years and was assigned to a Troop
Program Unit on an unknown date.

5.  On 31 January 1991, the applicant was released from a Troop Program
Unit (TPU) and assigned to the U.S. Army Reserve (Reinforcement) due to
unsatisfactory participation.
6.  The medical document from the St. John’s Regional Medical Center
covering the period 28 June 1990 to 7 July 1990 shows the applicant was
diagnosed as having an acute inferior wall myocardial infarction and
transient hypotension.

7.  Department of the Army, U.S. Army Reserve Personnel Center, St. Louis,
Missouri, Orders Number D-12-513795, dated 12 December 1995, discharged the
applicant from the U.S. Army Reserve Control Group (Reinforcement) on
12 December 1995.

8.  The applicant’s personnel records contain a letter, dated 12 May 2006,
from the Director, Personnel Actions and Services, U.S. Army Human
Resources Command, St. Louis, Missouri.  The letter indicated that the
applicant was credited with 16 years of qualifying service for retired pay
benefits and he was not eligible for retired pay benefits based on Sections
12731 through 12739 of Title 10, United States Code.  The applicant’s
Chronological Record of Military Service is not available.

9.  The applicant reached age 60 on 15 August 2006.

10.  Public Law 103-337, dated 5 October 1994, established early reserve
retirement eligibility for Soldiers involuntarily separated from the
Selected Reserve due to physical disability during the period 5 October
1994 through 30 September 1999.  Eligibility was based on a minimum of 15
years of qualifying service toward a Reserve retirement.  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 and ending on 1 October 1999 to Soldiers who attained 15 years
of retirement eligibility after 1 October 1991.

11.  Sections 12731 through 12739 of Title 10, United States Code,
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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged from the Army National Guard on
21 September 1989 and subsequently served in a TPU in the U.S. Army
Reserve until he was transferred to the U.S. Army Reserve Control Group
(Reinforcement) on 31 January 1991. It is recognized that he was probably
not
a satisfactory participant in his TPU due to his medical condition.

2.  The letter from U.S. Army Human Resources Command, St. Louis, Missouri,
indicated he was credited with 16 years of qualifying service for retired
pay benefits.

3.  Unfortunately, the Early Reserve Retirement for Disabled Members law
does not apply in this case.  The applicant was separated from the Selected
Reserve prior to the October 1994 enactment of the law authorizing early
retirement and prior to the amendment which made the law retroactive on 23
October 1992.  In addition, because he did not have 20 years of qualifying
service for retired pay, he was not qualified for a 20-year Reserve
retirement.

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

PF______  TR______  JR______  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.




                                  Peter Fisher__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009375                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061221                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |135.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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