IN THE CASE OF:
BOARD DATE: 4 August 2009
DOCKET NUMBER: AR20090001890
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, that he be authorized Reserve retired pay at age 60.
2. The applicant states that he has 19 qualifying years and is disabled. He draws Social Security. He thinks he should receive credit for drilling with the 326th Medical Battalion between August 1975 and March 1978.
3. The applicant provides, in support of his request, copies of his August 1975 and January 1984 DD Forms 214 (Certificate of Release or Discharge from Active Duty, a November 2000 and a December 2004 retirement points account statement, his 7 December 1999 discharge orders and a letter from the Social Security Administration stating he received no credit for pre-1957 military service.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel, in effect, defers to the applicant's request.
2. Counsel states, in effect, that it is difficult to understand how the applicant could have been assigned to a unit and promoted, yet not earn any points. He notes that the applicant had 18 qualifying years and believes that he must qualify for disability retirement.
3. Counsel provides a copy of a Department of Veterans Affairs Rating decision showing that, on 6 June 2006 the applicant was rated at 10 percent each for two separate service connected conditions.
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. The applicant, a career U.S. Army Reserve (USAR) Soldier was discharged, on 7 December 1999, at the expiration of his term of service. He was NPQ. He had accumulated 19 years of qualifying service for retired pay at age 60.
3. His
DISCUSSION AND CONCLUSIONS:
1.
2.
3.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ___X___ ___X____ 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 (list corrections in this paragraph, this paragraph with lettered subparagraphs or in a series of numbered paragraphs).
USE THE FOLLOWING ENTRIES IF SOME RELIEF IS GRANTED AND SOME RELIEF IS DENIED.
1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by (list corrections in this paragraph, this paragraph with lettered subparagraphs or in a series of numbered paragraphs).
X. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to (list what was denied).
_______ _ 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) AR20090001890
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ABCMR Record of Proceedings (cont) AR20090001890
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