IN THE CASE OF:
BOARD DATE: 22 May 2008
DOCKET NUMBER: AR20070011480
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, restoration of his Federal Reserve of the Army appointment and transfer to the Retired Reserve.
2. The applicant states, in effect, that he was separated with 15 years of qualifying service for retirement due to medical reasons. He was not issued a 15-year letter at the time of his separation and was not made aware of the process to request a transfer to the Retired Reserve.
3. The applicant provides copies of his notification of eligibility for retired pay at age 60, Army National Guard Current Annual Statement (NGB Form 23A), and a letter from the Illinois Army and Air National Guard, dated 25 July 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 8 February 1989, the applicant enlisted in the Indiana Army National Guard and the United States Army Reserve. He was awarded military occupational specialty 12B (Combat Engineer). On 25 June 1993, he was separated for the purpose of accepting a commission.
3. On 26 June 1993, the applicant was appointed as a commissioned officer, Infantry Branch, in the Illinois Army National Guard and as a Reserve of the Army. He was promoted to the rank of captain, pay grade O-3 on 24 August 1999.
4. Orders 182-186, State of Illinois, dated 30 June 2004, separated the applicant from the Army National Guard and from the Reserve of the Army.
5. The applicant's Report of Separation and Record of Service (NGB Form 22) effective 30 June 2004, separated him due to medical, physical or mental condition. He had completed a total of 15 years military service creditable for retired pay.
6. On 24 July 2007, the Illinois Army and Air National Guard issued the applicant a Selected Reserve 15-Year Letter notifying him of his eligibility for retired pay at age 60. It stated that his eligibility for retired pay was based on his physical disability and that his disability was not as the result of intentional misconduct.
7. On 25 July 2007, the Military Personnel Officer, Illinois Army and Air National Guard, wrote a letter to the applicant informing him that as a result of his subsequent termination of Federal Reserve of the Army appointment and discharge, he was not eligible for transfer to the Retired Reserve. It further recommended that he apply to this Board for relief.
8. The applicant was born on 1 January 1971 and will attain age 60 on
1 January 2031.
9. In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau, Arlington, Virginia. It stated that the applicant was separated from the Army National Guard for medical or physical conditions with 15 years of total service for retired pay. It further stated
that the Illinois Army National Guard issued the applicant an eligibility letter for retired pay at age 60 based only on the points earned prior to transfer to the Retired Reserve. It also states that the applicants Federal recognition was terminated when he became medically disqualified for further service. It recommended that the applicant be eligible to receive retirement pay at age 60.
10. On 8 May 2008, the applicant concurred with the advisory opinion.
DISCUSSION AND CONCLUSIONS:
1. The available evidence clearly shows that the applicant had completed
15 years of service creditable for retired pay. Furthermore, it appears that he was not fully informed of his options resulting in his resigning his commission. Consequently, he was separated on 30 June 2004 and was not transferred to the Retired Reserve.
2. On 24 July 2007, the applicant was issued a 15-year Letter for retired pay at age 60.
3. In view of the above, the applicant's records should be corrected to void his resignation, revoke his 30 June 2004 separation order from the Illinois Army National Guard and the Reserve of the Army, and to show that he was transferred to the Retired Reserve on 30 June 2004.
BOARD VOTE:
___X___ ___X____ ___X ____ 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 all Department of the Army records of the individual concerned be corrected by:
a. revoking his 30 June 2004 separation from the Illinois Army National Guard and the Reserve of the Army;
b. showing that he was transferred to the Retired Reserve on 30 June 2004.
___________X____________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20070016793
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ABCMR Record of Proceedings (cont) AR20070011480
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