RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 February 2008
	DOCKET NUMBER:  AR20070010265 


	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. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Patrick H. McGann Jr.

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. Michael J. Flynn

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, that he be issued a letter of notification of eligibility for retired pay at age 60 (a 20 year letter). 

2.  The applicant makes no additional statement. 

3.  The applicant provides a U.S. Army Reserve Personnel Command Retirement Points Statement, dated 24 September 1999, and a U.S. Army Human Resources Command – St. Louis (USAHRC – STL) memorandum, dated            7 September 2007.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 5 January 1952, the applicant was born.  He served on active duty from 
24 April 1972 through 6 May 1977.  After a break in service, he enlisted in the Louisiana Army National Guard (LAARNG) 10 December 1983.  He either reenlisted once or had an earlier extension when, on 10 September 1990,          he extended for 6 years, making his expiration of term of service (ETS)             18 December 1996.  On 19 May 1993, he was honorably discharged from the LAARNG with 14 years and 13 days of qualifying service and transferred to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve).  

3.  Item 18 (Remarks) of the applicant's NGB Form 22 (Report of Separation and Record of Service), dated 19 May 1993 shows he was assigned to the USAR Control Group for completion of his military obligation.  Item 23 (Authority and Reason), shows the entry "Para 8-26y, NGB 600-200 Medically Unfit for Retention Standards of Chapter 3 AR 40-501." 

4.  On or about November 1994, the applicant was assigned to the 1192nd U.S. Army Transportation Terminal Battalion, a USAR Troop Program Unit (TPU).  He earned a qualifying year during retirement year ending (RYE) 9 December 1995.

5.  Headquarters, U. S. Army Reserve Command Orders 97-238-036, dated        26 August 1997, show the applicant was honorably discharged from the USAR effective that date.

6.  Headquarters, U.S. Army 90th Regional Support Command Orders 252-359, dated 9 September 1997, shows the applicant was relieved from his unit of assignment for unsatisfactory participation and assigned to the USAR Control Group Annual Training (AT).

7.  In the processing of this case an advisory opinion was obtained from the Department of the Army, USAHRC - STL.  The advisory opinion stated that the applicant's personnel records showed that he did not have 20 years of qualifying service.  It further indicated that the applicant was credited with 15 years and      3 days total service qualifying for retirement.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not reply within the given time frame.  

8.  A USAHRC - STL Chronological Statement of Retirement Points, dated        29 January 2008, shows the applicant completed 15 years and 13 days of qualifying service.

9.  Title 10, U. S. Code, sections 12731 through 12738 of Title 10, U.S. 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.

10.  Title 10, U.S. Code, section 12731a was the temporary special retirement qualification authority.  It provided that, during the period 1 October 1991 through 30 September 1999, a member of the Selected Reserve who completed at least 15, and less than 20, years of qualifying service as of 1 October 1991 could, upon the request of the member, be transferred to the Retired Reserve.  The Secretary concerned could limit the applicability of this section to meet the needs of the Service.

11.  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 is based on a minimum of 15 years of qualifying service toward Reserve Component 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be issued a letter of notification of eligibility for retired pay at age 60.  However, evidence of record shows that he did not have 20 years of qualifying service at the time of his discharge from the USAR.  He had 15 years and 13 days of qualifying service.  

2.  The applicant was discharged from the LAARNG in May 1993 for being medically unfit for retention; however, at that time he only had 14 years and      13 days.  

3.  The applicant was assigned to the USAR Control Group to complete his contractual obligation, and around November 1994 he was assigned to a TPU.  He earned a qualifying year for retirement during RYE 9 December 1995, indicating he was not medically unfit while he was in the TPU.  His ETS was 18 December 1996; however, he was not discharged from the USAR until the U. S. Army Reserve Command issued orders on 26 August 1997.  His TPU unit erroneously discharged him for unsatisfactory participation on orders dated 9 September 1997.  

4.  Although the applicant had over 15 years of qualifying service when he was discharged from the USAR, there is no evidence and the applicant has not provided evidence to show he was medically unfit while assigned to the TPU.  There is no evidence and he provides no evidence to show he was otherwise involuntarily separated (e.g., by reason of unit deactivation) from the USAR.  In view of the foregoing, there is insufficient evidence to warrant granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__PHM__  __ECP__  ___MJF__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




___Patrick H. McGann Jr._
          CHAIRPERSON




INDEX

CASE ID
AR20080010265
SUFFIX

RECON

DATE BOARDED
20 FEBRUARY 2008
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
136.0400.0000
2.

3.

4.

5.

6.