IN THE CASE OF:	  

		BOARD DATE:	        5 August 2008

		DOCKET NUMBER:  AR20080007614 


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 her records be corrected to show she is entitled to an early Reserve retirement due to physical disability.

2.  The applicant states that when she was discharged from the Army National Guard (ARNG), her U.S. Air Force Reserve (USAFR) service was not on her record.  Therefore, she did not get an early medical retirement.

3.  The applicant provides a Progress Note, dated 15 April 2008; her ARNG Honorable Discharge Certificate; a memorandum, dated 22 May 2002; a letter, dated 29 February 2008, from the National Personnel Records Center; her Regular Air Force DD Form 214 (Certificate of Release or Discharge from Active Duty) with a related DD Form 215 (Correction to DD Form 214); two security briefing/debriefing forms; an ARNG Retirement Points History Statement, dated  14 April 2003; 18 pages of Air National Guard/USAFR Point Credit Summaries; and a USAFR enlistment contract, dated 2 May 1998.

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.  The applicant was born on 22 January 1965.  She served in the Regular Air Force from 4 November 1985 through 30 June 1995.  She served in the USAFR from 1 July 1995 through 20 August 2000.

3.  The applicant enlisted in the Georgia ARNG (GAARNG) on 21 August 2000.

4.  On or about 22 May 2002, a State Medical Review Board determined the applicant was medically unfit to perform her duties.  Based on current information on record, it was noted that she had zero through 14 years of service and would be honorably discharged from the ARNG.

5.  The applicant’s National Guard Bureau (NGB) Form 22 (Report of Separation) is not available.  Orders, dated 9 December 2002, show she was discharged from the ARNG and as a Reserve of the Army effective 9 December 2002.

6.  The applicant’s ARNG Retirement Points History Statement, dated 14 April 2003, showed she had 10 years, 7 months, and 27 days of creditable service for retired pay.  This statement does not reflect her USAFR service.

7.  On 24 July 2008, based upon the Air National Guard/USAFR Point Credit Summaries the applicant provided, the GAARNG prepared an updated ARNG Current Annual Statement.  This statement shows the applicant has 16 years of creditable service for retired pay.

8.  Sections 12731 through 12740 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.  

9.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U. S. Code by adding section 12731b, (Special rule for members with physical disabilities not incurred in line of duty).  Section 12731b(a) states that a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of 

section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he/she has completed at least 15 and less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged from the Army National Guard and as a Reserve of the Army on 9 December 2002 due to being medically unqualified for retention.  At that time, her ARNG Retirement Points History Statement did not reflect her USAFR service and showed that she had 10 years, 7 months, and     27 days of creditable service for retired pay.  

2.  On 24 July 2008, the GAARNG prepared an updated ARNG Current Annual Statement.  This statement shows the applicant has 16 years of creditable service for retired pay.  Since she was found to be medically unfit for retention in the Selected Reserve, the additional retirement points makes her eligible for retired pay at age 60.

3.  It would be equitable to correct her records to void her discharge, to show she was transferred to the Retired Reserve, and to issue to her a notification of eligibility for retired pay at age 60 (a 15-year letter). 

BOARD VOTE:

___xx___  ___xx___  ___xx___  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 State Army National Guard and Department of the Army records of the individual concerned be corrected by: 
     a.  voiding her 9 December 2002 discharge from the Army National Guard and as a Reserve of the Army;
   
	b.  publishing orders assigning her to the U.S. Army Reserve (Retired) effective 9 December 2002; and
     
	c.  issuing to her a 15-year letter notifying her she is eligible for retired pay at age 60.



      _________xxxx_________
               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)                                         AR20080007614



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ABCMR Record of Proceedings (cont)                                         AR20080007614



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