RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 March 2007
	DOCKET NUMBER:  AR20060011449 


	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. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. William Crain

Chairperson

Mr. Edward Montgomery

Member

Ms. Rea 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, a 15-year letter.

2.  The applicant states that the Wisconsin Army National Guard recorded his separation from the National Guard as expiration term of service.  He states that he has over 15 years of service with good retirement points and that he is a disabled veteran (100 percent) seeking his Reserve Component retirement.  He also questions why he was transferred to the Ready Reserve if he was medically unqualified for retention.  

3.  The applicant provides discharge orders, dated 11 May 1988; a Notification of Personnel Action, dated 1 July 1988; an Honorable Discharge Certificate from the Wisconsin Army National Guard; a letter, dated 29 July 2004; an Army National Guard Current Annual Statement, prepared on 29 July 2004; letters, dated 25 July 2006 and 25 September 2006; and a letter, dated 3 November 2006, from a Member of Congress. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
1 May 1988.  The application submitted in this case is dated 7 August 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 enlisted in the Regular Army on 13 May 1963, served as a helicopter mechanic, and was released from active duty on 4 May 1966 and transferred to the U.S. Army Reserve.  He enlisted in the Wisconsin Army National Guard on 30 September 1978.  On 1 May 1988, the applicant was honorably discharged from the Wisconsin Army National Guard for being medically unfit for retention and transferred to the U.S. Army Reserve Control Group (Reinforcement).  He had completed 15 years, 11 months, and 
22 days of creditable service for retired pay.
  
4.  On 12 December 1995, the applicant was discharged from the USAR Control Group (Reinforcement).  He had earned only 15 membership points while in the USAR.

5.  In the processing of this case, a request for an advisory opinion from the National Guard Bureau was made.  On 15 December 2006, the request for an advisory opinion was returned without action due to insufficient evidence.  On 
9 January 2007, the applicant provided additional documentation in response to the request for an advisory opinion.  The documentation included a letter, dated 
6 January 2007; a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service); a NGB Form 23B (Army National Guard Retirement Points History Statement), prepared 9 June 2006; a DA Form 2496 (Disposition Form); and six documents supporting his medical discharge.

6.  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 applicant separated from the Selected Reserve (i.e. the Army National Guard) prior to the enactment of the law authorizing early retirement.  Regrettably, there is no basis for granting the applicant’s request.

2.  It appears the applicant was erroneously transferred to the USAR in May 1988.  It is also possible his unit thought it was doing the applicant a favor by giving him an opportunity to earn additional qualifying years towards a Reserve retirement (he could have earned retirement points by completing correspondence courses).  

3.  Records show the applicant should have discovered the alleged error now under consideration on 1 May 1988; therefore, the time for the applicant to file a request for correction of any error expired on 30 April 1991.  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

WC___  ____EM__  _RN_____  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 Crain______
          CHAIRPERSON




INDEX

CASE ID
AR20060011449
SUFFIX

RECON

DATE BOARDED
20070308
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108.0000
2.

3.

4.

5.

6.