RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  16 October 2007
	DOCKET NUMBER:  AR20070004562 


	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.


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. James E. Anderholm

Member

Mr. Joe R. Schroeder

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 military service records to show he transferred to the Retired Reserve, effective 15 June 2005.

2.  The applicant states, in effect, when his unit was being deployed to Iraq, a medical review board determined he was non-deployable.  At that time, he was told medical retirement was not an option because he did not have a service-connected disability, even though he had a permanent profile and medical records documenting his medical condition.  The applicant further states, in effect, the Retirement Points History Statement he received at the time did not reflect all of his creditable service.  As a result, even though he had 20 years of service, he was forced to elect to be discharged, since he did not have the option to transfer to the Retired Reserve.  The applicant adds, in effect, that this error has had a great impact on him because he has been denied retirement benefits that he is entitled to.

3.  The applicant provides copies of Headquarters, State of North Carolina, Department of Crime Control and Public Safety, Office of the Adjutant General, North Carolina National Guard, memorandum, dated 11 April 2005, subject: Notification of Medical Disqualification for Retention with identified enclosures and applicant’s reply; Headquarters, State of North Carolina, Department of Crime Control and Public Safety, Office of the Adjutant General, Raleigh, North Carolina, Orders 140-809, dated 20 May 2005; NGB Form 22 (National Guard Bureau, Report of Separation and Record of Service), with an effective date of
15 June 2005; National Personnel Record Center, Military Personnel Records, St. Louis, Missouri, letter, dated 8 February 2006; 1-page statement by the applicant, dated 9 February 2006; Headquarters, State of North Carolina, Department of Crime Control and Public Safety, Office of the Adjutant General, Raleigh, North Carolina, memorandum, dated 24 February 2006, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter); NGB Form 23B (Army National Guard (ARNG) Retirement Points History Statement), dated 24 February 2006; and Department of Veterans Affairs (VA), Winston-Salem Regional Office, Winston-Salem, North Carolina, Rating Decision, dated
9 June 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he enlisted in the ARNG for a period of 8 years on 12 June 1985.  On 11 August 1986, he was ordered to active duty for training (ADT) and, upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 91D (Operating Room Specialist).  The applicant was honorably released from ADT on 19 December 1986.

2.  The applicant's military service records contain a copy of State of North Carolina, Office of the Adjutant General, Raleigh, North Carolina, Orders 051-302, dated 17 March 2005.  These orders show that the applicant was ordered to active duty as a member of his Reserve Component Unit, on 6 April 2005, in support of Operation Iraqi Freedom.  The Additional Instructions of these orders state, in pertinent part, “[i]f upon reporting for active duty, you fail to meet deployment medical standards (whether because of a temporary or permanent medical condition), then you may be released from active duty, returned to your prior reserve status, and returned to your home address.”

3.  The applicant's military service records contain a copy of Headquarters, State of North Carolina, Department of Crime Control and Public Safety, Office of the Adjutant General, Raleigh, North Carolina, Orders 140-809, dated 20 May 2005.  These orders show that the applicant was honorably discharged from the ARNG and as a Reserve of the Army, effective 15 June 2005.

4.  The applicant's military service records contain a copy of NGB Form 22, with an effective date of 15 June 2005, which shows that the applicant was honorably separated from the ARNG of North Carolina and as a Reserve of the Army, in the rank of staff sergeant (SSG)/pay grade E-6, effective 15 June 2005.  Item 10 (Record of Service), block a (Net Service This Period) and block d (Total Service for Pay), show that the applicant was credited with completing 20 years and
4 days of service.  Item 10, block e (Total Service for Retired Pay) shows he was credited with completing 19 years for retired pay.  This document also shows that the authority and reason for the applicant’s discharge was National Guard Regulation 600-200, paragraph 8-26j(1), medically unfit for retention.

5.  In support of his application, the applicant provides a copy of Headquarters, State of North Carolina, Department of Crime Control and Public Safety, Office of the Adjutant General, North Carolina National Guard memorandum, dated 
11 April 2005, subject: Notification of Medical Disqualification for Retention with enclosures and the applicant’s reply.  This document shows the applicant was notified that he no longer met the Army medical standards for retention based on his (then) current medical condition and that he must elect one of three options: (1) discharge from the ARNG and as a Reserve of the Army; (2) retirement (transfer to the Retired Reserve if he had over 20 qualifying years or medical retirement if he had more than 15 but less than 20 qualifying year (not Line of Duty related)); or (3) a non-duty related Physical Evaluation Board (PEB) for retention ruling.
     a.  The enclosures to the notification memorandum provide, in pertinent part, the regulatory provisions for transfer to the Retired Reserve and also show that through retirement year ending (RYE) date 11 June 2004, the applicant was credited with completing 19 years of service for retired pay.

     b.  The applicant’s reply to the notification memorandum shows that he elected discharge from the ARNG and as a Reserve of the Army.  He also provides a copy of Headquarters, State of North Carolina, Department of Crime Control and Public Safety, Office of the Adjutant General, Raleigh, North Carolina, Orders 140-809, dated 20 May 2005 and NGB Form 22, with an effective date of 15 June 2005, which show, in pertinent part, that the applicant was honorably separated from the ARNG of North Carolina and as a Reserve of the Army, effective 15 June 2005; that he was credited with completing 20 years and 4 days of total service; and credited with completing 19 years for retired pay.

     c.  The National Personnel Record Center, Military Personnel Records,
St. Louis, Missouri, letter, dated 8 February 2006, and 1-page statement by the applicant, dated 9 February 2006, in pertinent part, document the applicant’s efforts to obtain copies of his ARNG records to substantiate additional creditable service subsequent to 11 June 2004.

     d.  The Headquarters, State of North Carolina, Department of Crime Control and Public Safety, Office of the Adjutant General, Raleigh, North Carolina, memorandum, dated 24 February 2006, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) and NGB Form 23B (ARNG Retirement Points History Statement), dated 24 February 2006, show, in pertinent part, that the applicant was credited with 56 total points for retired pay for RYE date 11 June 2005 and that he had completed 20 creditable years of service for retired pay, resulting in his eligibility for retired pay upon application at age 60.

     e.  The VA Rating Decision, dated 9 June 2006, shows, in pertinent part, that the VA granted service connection for recurrent left shoulder dislocation with an evaluation of 20 percent, effective 22 June 2005.

6.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer U.S. Army Reserve (USAR) Soldiers.  Chapter 6 (Transfer To and From the Retired Reserve), Section I (Transfer to the Retired Reserve), paragraph 6-1 (Eligibility) outlines eligibility for assignment to the Retired Reserve.  This paragraph states that eligible Soldiers must request transfer if they, in pertinent part, have completed a total of 20 years of active or inactive service in the Armed Forces or are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty regardless of the total years of service completed.

7.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve Component Soldiers.  Chapter 2 provides eligibility criteria and, in pertinent part, states that in order to qualify for non-regular retirement, a member must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 6 years of his or her qualifying service as a Reserve Component Soldier.  Paragraph 2-8 defines qualifying service and states, in pertinent part, that a Reserve Component Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his military service records should be corrected to show that he transferred to the Retired Reserve, effective 15 June 2005, because his records were in error and he was erroneously told he was not eligible for transfer to the Retired Reserve when he elected to be discharged.

2.  The evidence of record shows that the applicant was notified on 11 April 2005 of his medical disqualification for retention.  At the time, the ARNG Retirement Points History Statement, dated 7 April 2005, that accompanied the notification did not reflect the applicant’s creditable service for RYE date 11June 2005.  However, the notification to the applicant advised him of the three options available to him; one of which was to request transfer to the Retired Reserve.

3.  The evidence of record shows that the applicant elected to be discharged from the ARNG and as a Reserve of the Army with 19 years of creditable service for retired pay.  It is not clear to the Board why the applicant did not recognize and/or identify to Army officials that his creditable service for his (then) current retirement year, with a RYE date of 11 June 2005, did not reflect his most recent creditable service and it is also not clear why Army officials did not identify this missing creditable service, at the time.

4.  The evidence of record shows that, subsequent to his discharge, the applicant sought to obtain copies of his ARNG records to substantiate additional creditable service subsequent to RYE date 11 June 2004.  The evidence of record also shows that an ARNG Retirement Points History Statement, dated 24 February 2006, was generated, which included the applicant’s creditable service for RYE date 11 June 2005.  This document shows he was credited with 20 years of creditable service for Retired Pay as of RYE date 11 June 2005.  The evidence of record further shows that on 24 February 2006, the State of North Carolina, Office of the Adjutant General, notified the applicant of his eligibility for Retired Pay at age 60. Thus, the evidence of record shows that the applicant completed 20 creditable years of service prior to the date he was discharged from the ARNG and as a Reserve of the Army.  Therefore, based on all of the foregoing and as a matter of justice, the applicant’s records should be corrected to show that he transferred to the Retired Reserve, in the rank of SSG (E-6), effective
15 June 2005.

5.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant's SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at: http://www.armyg1.army.mil/RSO/rso.asp

BOARD VOTE:

___SLP _  ___JEA__  ___JRS _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that The Adjutant 
General of the State of North Carolina correct the applicant's records and directs that all Department of the Army records of the individual concerned be corrected by:

     a.  revoking Headquarters, State of North Carolina, Department of Crime Control and Public Safety, Office of the Adjutant General, Raleigh, North Carolina, Orders 140-809, dated 20 May 2005;

     b.  issuing orders discharging the applicant from the Army National Guard and transferring him to the Retired Reserve, effective 15 June 2005; and

     c.  correcting his NGB Form 22, with an effective date of 15 June 2005, by:

         (1)  deleting from Item 9 (Command To Which Transferred) the entry “NA” and adding the entry “USAR Retired Reserve;” and

         (2)  deleting from Item 10 (Record of Service), block e (Total Service for Retired Pay) the entry “19 (Years), 00 (Months), and 00 (Days)” and adding the entry “20 (Years), 00 (Months), and 04 (Days).




____Shirley L. Powell____
          CHAIRPERSON




INDEX

CASE ID
AR20070004562
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/10/16
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20050615
DISCHARGE AUTHORITY
NGR 600-200, Paragraph 8-26j(1)
DISCHARGE REASON
Medically Unfit for Retention
BOARD DECISION
GRANT
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
135.0200.0000
2.

3.

4.

5.

6.