RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 June 2007
	DOCKET NUMBER:  AR20060016332 


	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

Acting Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Chester A. Damian

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 correction of his military records to show that he was medically retired.

2.  The applicant states, in effect, that at the time of his discharge from the Wisconsin Army National Guard (WIARNG) he was sixty percent disabled and should have been medically retired due to being found medically unfit for retention.  He says that he is now eighty percent disabled.  He further states that he has completed a total of 21 years and 3 days of service on active duty and in the WIARNG.  He references another case that was brought to the Army Board for Correction of Military Records (ABCMR) saying that it is the same type case and that it was approved.  

3.  The applicant provides a copy of his last Veterans Affairs (VA) rating decision, Certificate of Release or Discharge from Active Duty (DD Form 214), Report of Separation and Record of Service (NGB 22), and an electronic mail from the state benefits advisor.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 30 June 1999, the date of his discharge from the WIARNG.  The application submitted in this case is dated 3 November 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.  On 7 January 1977, the applicant enlisted in the Regular Army.  He completed his initial training and served through a series of enlistments until his discharge on 9 January 1995.  He had attained the rank of staff sergeant, pay grade E6 and was discharged under the early release program with a special separation benefit (SSB) of $62,664.00.  He had completed 18 years and 2 days of creditable active duty.


4.  On 18 April 1995, the applicant enlisted in the WIARNG in the rank of staff sergeant.  He was honorably discharged on 30 June 1999 under the provisions of National Guard Regulation 600-200, paragraph 8-26J(1) due to being medically unfit for retention.

5.  On 16 September 2003, the VA issued a rating decision showing that the applicant was thirty percent disabled as of 10 January 1995; seventy percent disabled as of 19 August 1997; sixty percent disabled as of 31 October 1997; and eighty percent disabled as of 16 March 2001.  He was granted unemployability from 4 February 2002. 

6.  On 18 January 2005, the Human Resource Technician, 88th Regional Support Team, Human Resources Command, 1 Reserve Way, St. Louis, Missouri, stated in a memorandum that the applicant had completed 21 qualifying years for retired pay.  However, to qualify for a retirement from the Reserve he also must serve his last 6 years in a Reserve status.  The applicant had completed only 3 years in a Reserve status.  

7.  In the similar ABCMR case cited by the applicant as having been approved, there is a marked difference.  In that case, the applicant had completed almost  
7 years service in the Reserve and WIARNG, they just were not during the last 
6 years of service.  That applicant had also completed almost 19 years on active duty.  In this case the applicant has only completed 3 years in the WIARNG.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence clearly shows that the applicant served on active duty for 
18 years and was separated with an SSB.  Three months later he enlisted in the WIARNG and served until his discharge due to being medically unfit.  He completed 21 qualifying years, but only served 3 years in the WIARNG.  Therefore, he is not eligible for transfer to the Retired Reserve.

2.  There is no evidence showing that the applicant requested a physical evaluation board (PEB) at the time of his discharge from the WIARNG.  Furthermore, if the applicant did receive a PEB, there is no evidence showing that he nonconcurred and was denied retention in the WIARNG. 

3.  In view of the above, the applicant's request should not be granted.



4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 June 1999; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
29 June 2002.  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

___JRS __  ___LDS__  __CD___  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.




___Linda D. Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR20060016332
SUFFIX

RECON
 
DATE BOARDED
20070605 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
108.0000
2.

3.

4.

5.

6.