RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 May 2007
      DOCKET NUMBER:  AR20060012757


      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      |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth Wright                |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Ms. Karmin Jenkins                |     |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, service credit for retirement
purposes.

2.  The applicant states that his discharge was unfair and unjust because
he was unable to retire after 15 years of service.  He states that as of 25
August 2006, he has not "received" a discharge from the United States Army
Reserve (USAR). He states that he was released from the USAR as medically
unfit for military service and that he was transferred to the inactive
Retired Reserve.  He states that he never had a certified evaluation by a
physician and that he has worked from 10 hours to 12 hours a day, 5 days a
week, sometimes 6 days a week, from the date of his dismissal until October
2004 (the date of his 65th Birthday).  He states that he does not believe
that he was unfit, as it was just an unfair way to beat him out of his
retirement.

3.  The applicant provides in support of his application a statement which
he contends were the events surrounding his discharge; a copy of
reassignment orders dated 20 May 1994; a copy of a Statement of Service –
For Computation of Length of Service for Pay Purposes (DA Form 1506);
Chronological Statements of Retirement Points; and a copy of a Detail
Listing for Previous Retirement Year.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 20 May 1994.  The application submitted in this case is
dated 25 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.  After completing 12 years, 4 months and 14 days of total active service
in the United States Air Force and United States Army, on 25 April 1990,
the applicant enlisted in the USAR in Beckley, West Virginia, for 8 years,
in the pay grade of
E-5.

4.  Orders were published on 19 April 1991, promoting the applicant to the
pay grade of E-6 with an effective date of 1 April 1991.

5.  Chronological Record of Medical Care notes dated 1 June 1991 indicate
that a physician noted in the applicant's records that in reviewing the
applicant's medical records in relation to bypass surgery in May 1991, he
was no longer considered medically fit for duty per Army Regulation 40-501.
 The physician's notes indicate that the applicant should be processed for
discharge during his temporary profile period.

6.  On 14 July 1991, the applicant was counseled by his first sergeant.
During the counseling session the applicant's first sergeant indicated that
the applicant was seeking a medical profile to preclude him from the
requirements of the Army Physical Fitness Test (APFT).  He indicated that
the applicant underwent bypass surgery stemming from a heart condition and
that he requested that a permanent profile be issued for the applicant as a
result of his bypass surgery.  The first sergeant stated that a physical
profile dated 1 June 1991 was completed with assignment limitations of no
APFT for 1 year and that based on a review of the applicant's submitted
report, he was considered medically unfit for further duty and should be
separated from the service per Army Regulation 40-501.  The first sergeant
stated that the applicant was given a temporary profile which expired on 1
June 1992.  The applicant was provided a copy of the counseling statement
and he expressed his dissatisfaction with the determination stating that he
would review the Army Regulation extractions given to him and research any
further legal recourse.  The applicant stated that he believed the medical
determination of his future physical capabilities was presumptuous and that
he might consider obtaining an updated medical evaluation.  The applicant
elected not to sign the counseling form.

7.  In an undated memorandum the applicant was notified that in accordance
with then current Army Regulations, his medical records/reports had been
reviewed by proper authority to determine his medical fitness for further
retention in the USAR.  In the memorandum, his commanding officer indicated
that after review, the applicant was found to have a medical condition
which rendered him medically disqualified for further retention in the
USAR; therefore, he was requested to elect an option available to him under
the provisions of Army Regulation 135-178, paragraph 12-1, prior to actual
discharge.  The applicant elected to be transferred to the USAR Control
Group (Retired) in accordance with Army Regulation 140-10, paragraph 6-
1a(8).

8.  The applicant's Chronological Statement of Retirement Points dated 11
May 1991 indicates that, at that time, he had 13 years, 4 months and 29
days total service (qualifying and non-qualifying) for longevity pay
purposes.

9.  The Chronological Statement of Retirement Points dated 5 May 1992
indicates that, at that time, that the applicant had 14 years, 4 months and
23 days of total service (qualifying and non-qualifying) for longevity pay
purposes.

10.  Orders were published on 20 May 1994, releasing the applicant from his
current assignment and reassigning him to the Retired Reserve, with an
effective date of 21 June 1994, due to a medical disqualification.

11.  Army Regulation 140-10 provides for Army Reserve Assignments,
Attachments, Details, and Transfers.  Paragraph 6-1a(8) states, in
pertinent part, that assignment to the Retired Reserve is authorized when
an individual is medically disqualified, not as a result of own misconduct,
for retention in an active status or entry on AD, regardless of the total
years of service completed.

12.  Army Regulation 135-178 provides for Army National Guard and Army
Reserve enlisted administrative separations.  Chapter 15-1k(c) provides, in
pertinent part, that discharge will be accomplished when it has been
determined that a Soldiers is no longer qualified for retention by reason
of medial unfitness unless the Soldier requests and is eligible for
transfer to the Retired Reserve.

13.  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 4 October
1994 through 30 September 1999 (later extended through 31 December 2001).
Eligibility is based on a minimum of 15 years of qualifying service toward
Reserve Component retirement.  Title 10 United States 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.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must
show or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy this requirement.

2.  The applicant's contentions have been noted.  However, the available
records fail to reveal any unfairness or injustices in the actions taken by
the Army in his case.  The applicant has not received a discharge
certificate because he was not discharged.  He was released from his
assigned unit and he was properly reassigned to the Retired Reserve.

3.  There is no evidence in the available record nor has the applicant
submitted any evidence to show that he met the criteria to be eligible for
retired pay.  In accordance with the applicable law, he would have had to
complete 15 years of qualifying service toward Reserve Component
retirement.  The available records indicate that he had 14 years, 4 months
and 23 days of total service (qualifying and non-qualifying) for longevity
pay purposes.  Therefore, he fell short of the 15 years of service needed
to qualify him for early Reserve Retirement eligibility.

4.  The available evidence of record shows that, although dissatisfied with
the determination of medical disqualification, the applicant had a physical
evaluation and he elected to be transferred to the USAR Control Group
(Retired).  The applicant has provided no evidence to substantiate his
contention that he was "beat out of his retirement".

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 May 1994; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 19 May 1997.  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

__KW ___  ___PM__  __KJ____  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.




                                  _____ Kenneth Wright________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060012757                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070510                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  338  |136.0000/RETIREMENT                     |
|2.  341                 |136.0300/USAR RETIRED RESERVE           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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