IN THE CASE OF:	  

		BOARD DATE:	       21 August 2008

		DOCKET NUMBER:  AR20080007760 


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 that his record be corrected to show that he was issued notification of eligibility for retired pay at age 60 (15-Year Letter) as a result of being medically unfit for retention in the Selected Reserve.

2.  The applicant makes no additional statement.

3.  The applicant provides:

	a.  A copy of his Army National Guard (ARNG) Retirement Points History Statement.

	b.  A copy of his DD Form 214.

	c.  A copy of DA Form 199 (Physical Evaluation Board (PEB) Proceedings).

	d.  A copy of his U.S. Army Reserve (USAR) Chronological Statement.

CONSIDERATION OF EVIDENCE:

1.  Title 10 U.S.C., 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 14 April 1953.  With prior service in the Regular Army, the USAR, and the ARNG, he entered active duty in an Active Guard Reserve (AGR) status on 14 May 1984.

3.  While serving on active duty in an AGR status, the applicant was referred to the Physical Disability Evaluation System (PDES) and underwent a PEB on 3 June 1996 where he was found to be unfit for retention due to chronic back pain and recommended for separation with a 20 percent disability rating and severance pay.  On 5 June 1996, the applicant concurred with the findings and the recommendation of the PEB.  On 21 August 1996, he was discharged due to disability with $60,796.80 in severance pay.  His ARNG Retirement Points History Statement and USAR Chronological Statement of Retirement show he completed 19 years, 8 months, and 1 day of creditable service for non-active duty retired pay as of 21 August 1996.

4.  Effective 21 August 1996, the ARNG discharged the applicant from the ARNG and as a Reserve of the Army Soldier by reason of being medically unfit for retention.

5.  In a previous request to the Army Board for Correction of Military Records (ABCMR), the applicant sought correction of his records to show he had 20 qualifying years for a non-regular Reserve retirement at the time of his discharge.  On 15 April 2008, the ABCMR denied his request citing the fact that his records showed he would not have attained 20 qualifying years of service for a non-regular Reserve retirement until around June 1997.

6.  In that same case, the ABCMR noted that the applicant did have over 15 years of qualifying service and might have been eligible for a Reserve retirement under the temporary early retirement authority as he was a member of the Selected Reserve and was medically unfit for retention.

7.  Title 10 U.S.C., Section 12731a and b, (Temporary Special Retirement Qualification Authority/Special Rule for Members with Physical Disabilities Not Incurred In Line of Duty), which became effective 5 October 1994, specified that during the period 1 October 1991 through 30 September 1999, a member of the Selected Reserve who had completed at least 15 but less than 20 years of service may be entitled to temporary special retirement qualification when they no longer meet the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, not due to misconduct, on or after 5 October 1995.  Under this provision, Soldiers who complete at least 15 and less than 20 years of qualifying service and are deemed medically disqualified for retention are eligible to receive retired pay at the age of 60.  The amount of retired pay is based upon the total number of qualifying years of service at the time of removal rather than the 20 years normally required.

8.  Title 10 U.S.C., Section 10143, defines Selected Reserve as "...consisting of units, and as designated by the Secretary concerned, of Reserves, trained as prescribed in section 10147(a)(1) of this title..."

9.  Title 10 U.S.C., Section 10147(a)(1), describes training as "participate in at least 48 scheduled drills or training periods during each year and serve on active duty for training of not less than 14 days (exclusive of travel time) during each year."

DISCUSSION AND CONCLUSIONS:

1.   The applicant requests he be issued a “15-Year Letter” for retired pay at age 60.

2.  Although the prior case indicated he may have been eligible for issuance of a 15-Year Letter under the provisions of Title 10 U.S.C., Section 12731, after an extensive review of the applicant’s military service record and the separation policies in effect at the time for AGR Soldiers, it has been determined that he is not eligible for the 15-Year Letter.

3.  The 15-Year Letter applies only to drilling Reserve Soldiers who are found to be medically unfit for continued service.  Members of the AGR Program, who are on full-time active duty, are eligible for physical disability processing provisions that are not available to drilling Reserve Soldiers.  In this case the applicant did not have 20 qualifying years of active duty, nor did he have 20 qualifying years for non-regular retired pay.  However, as an active duty soldier he qualified for severance pay since his disability was rated at 20 percent.  Accordingly, he was paid $60,796.80 in disability severance pay at the time of his separation.

4.  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.



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 for correction of the records of the individual concerned.



      __________X____________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080007760



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ABCMR Record of Proceedings (cont)                                         AR20080007760



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