RECORD OF PROCEEDINGS
IN THE CASE OF: KANANEN, RONALD R.
BOARD DATE: 17 April 2008
DOCKET NUMBER: AR20070018477
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.
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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. Through a Member of Congress, the applicant requests, in effect, reconsideration of his earlier petition that he be granted entitlement to retired pay at age 60.
2. In his Congressional Inquiry, the applicant states, in effect, that his issue with the United States Military is a pension he has been pursuing. He indicates that he realizes some time has passed, but requests Congressional assistance in resolving this matter.
3. The applicant provides a self-authored statement submitted as his Congressional Inquiry and a prior self-authored letter to another Member of Congress, dated 12 June 2002, with enclosures that were reviewed by the Board during its original consideration of the case, in support of his application.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2001058420, on 26 October 2001.
2. During its original review of the case, the Board determined that the applicant was found medically unfit for further service and was transferred to the Retired Reserve on 4 June 1992, and that he was not eligible for disability processing because his condition was not incurred while performing military duties. It further determined that although the applicant had completed 15 years, of qualifying service for non-regular Reserve retirement purposes, he was separated from the Reserves 4 months prior to the passage of the law that might have allowed for his early retirement.
3. As new evidence, the applicant provides the self-authored statement included with the Privacy Act release he provided his Member of Congress, in which he states that he has been pursuing a pension and that five years have passed since he has taken any action on the matter. He also states in a letter to another Member of Congress on 12 June 2002, that although he had the required
15 years of service, the military was contending he did not have enough time to retire. He included documents with this letter that had been reviewed by the Board during its original consideration.
4. The applicant's record shows that the Michigan Army National Guard (MIARNG) Surgeon determined the applicant was medically ineligible for further service, and that the applicant was notified of this decision on 5 May 1992.
5. On 4 June 1992, the applicant was discharged from the MIARNG based on his not meeting medical retention standards.
6. On 21 September 2000, the applicant's MIARNG discharge orders were revoked, and he was instead discharged from the MIARNG and transferred to the United States Army Reserve (USAR), Retired Reserve, effective 4 June 1992. At the time, he had completed over 15 years of qualifying service for Reserve retirement purposes.
7. Title 10 of the United States Code, Section 12731 (10 USC 12731) provides the age and service requirements for non-regular retired pay at age 60. It states, in pertinent part, that members who have performed at least 20 years of qualifying service are eligible to receive retired pay at age 60 upon application.
8. 10 USC 12731a provided Temporary Special Retirement Qualification Authority that allowed members who had completed at least 15, and less than
20 years of qualifying service to receive retired pay at age 60 upon application. The period of this temporary authority outlined in the law was between
23 October 1992 and 31 December 2001. The law provided no retroactive provisions that allowed for using this authority prior to 23 October 1992.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he should be eligible to receive retired pay at age 60 based on his completion of over 15 years of qualifying RC service was carefully considered. However, there is an insufficient evidentiary basis to support granting the requested relief.
2. By law, the period during which temporary retirement authority that allowed members who completed at least 15, but less than 20 years of service began on 23 October 1992. The law provided no retroactive provisions that would allow for applying these provisions to members who were not in an active Selected Reserve status on 23 October 1992. As a result, although the applicant had completed more than the 15 years necessary to qualify for retired pay at age 60 under this temporary retirement authority, he was no longer in an active Reserve status on 23 October 1992, and therefore was not eligible under this provision of the law. As a result, it would not be appropriate or in the interest of all Reserve Component Soldier who faced similar circumstances to grant the requested relief.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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, or that would support amendment of the original Board decision in this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__x_ __x___ __x__ 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 to amend the decision of the ABCMR set forth in Docket Number AR2001058420, dated 26 October 2001.
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