IN THE CASE OF:	  

		BOARD DATE:	        18 June 2009

		DOCKET NUMBER:  AR20080015240 


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 initially requested a 20-Year Letter certifying his eligibility for retired pay at age 60.  However, he amended his initial application and now requests a 15-Year letter. 

2.  The applicant states, in effect, that he received documentation from the Army Reserve Personnel Center (ARPERCEN) which shows he completed 20 years or more of reserve duty.  

3.  The applicant provides the following documents in support of his application:

	a.  DD Form 108 (Application for Retired Pay Benefits), dated 22 October 2007;

	b.  DD Form 2656 (Data for Payment of Retired Personnel), dated 16 October 2007;

	c.  Social Security Administration Disability Findings, dated 7 December 1995;

	d.  DD Form 689 (Individual Sick Slip), dated 27 April 1991;

	e.  DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge) with a separation date of 8 October 1968; 

	f.  a copy of Retirement Points Accounting System Summary Points Inquiry, dated 2 November 2007; and
	g.  a letter from U.S. Army Human Resources Command-St. Louis (HRC-STL), dated 2 November 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 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's military personnel record shows that he enlisted in the U.S. Navy on 27 July 1965.  He was honorably separated on 8 October 1968 and transferred to the U.S. Naval Reserve.  His records show he had completed 3 years, 2 months, and 10 days of active service during this enlistment period.  He was transferred to the Naval Reserve.

3.  After a break in service, the applicant enlisted in the U.S. Army Reserve (USAR) on 25 February 1975. 

4.  On 25 February 1976, the applicant reenlisted in the USAR for a 3-year period of service and he continuously reenlisted.  Records show his last reenlistment was on 25 July 1988 for a 6-year period which established his new expiration of his term of service as 24 July 1994.  The DD Form 4/1 (Enlistment/Reenlistment Document) that he acknowledged in his own hand on 25 July 1988 shows that his rank and grade on the date of his reenlistment was sergeant first class/pay grade E-7.  This same DD Form 4/1 shows that his total active federal service was 3 years, 2 months, and 10 days, and his total inactive military service was 16 years, 4 months, and 17 days.  

5.  On 13 February 1988, a DARP Form 249 (Chronological Statement of Retirement Points) published by ARPERCEN shows that the applicant had 15 years of qualifying service for retirement pay and 18 years, 11 months, and 18 days of total service (qualifying and nonqualifying) for longevity pay purposes. This form was personally authenticated by the applicant on 4 December 1988.

6.  On 30 June 1991, records show the applicant was voluntarily reassigned to the USAR Control Group (Reinforcement) per publication of Orders 098-012, dated 15 July 1991, by Headquarters, 120th Army Reserve Command.

7.  On 7 December 1995, an administrative law judge with the Social Security Administration determined that the applicant was disabled as of 13 May 1991 and that he was entitled to disability insurance benefits.  The findings were as follows:

	a.  applicant was insured for Title II disability benefits;

	b.  applicant had not engaged in substantial gainful activity since 13 May 1991;

	c.  since 13 May 1991, the applicant's work was limited by chronic lumbar strain superimposed on degenerative disease of the lumbar spine;

	d.  his medical record showed underlying conditions which produce pain and limitations on sitting, standing, walking, and lifting;

	e.  pain prevented him from sitting, standing, or walking any appreciable length of time or distance and severely compromised his residual functional capacity for work at all exertion levels to include sedentary; 

	f.  pain prevented the applicant from performing his former job as a truck driver or any other jobs existing in significant numbers in the national economy; and 

	g.  applicant is disabled as defined by the Social Security Act, since 13 May 1991. 

8.  On 11 April 1996, records show the applicant was released from the USAR Control Group (Reinforcement) and assigned to the Retired Reserve.  The reason noted on the assignment orders was the applicant had completed 20 or more years of Army Reserve duty. 

9.  On 16 October 2007, the applicant applied to HRC-STL requesting retirement benefits based on receipt of orders, dated 11 April 1996, which shows he had completed 20 or more years of Army Reserve service.  

10.  On 2 November 2007, HRC-STL notified the applicant through a memorandum that his military record was audited and he did not qualify for nonregular retirement benefits.  A Retirement Points Accounting System statement shows he had completed 19 years, 00 months, and 00 days of qualifying service for retirement. 

11.  On 3 December 2007, the applicant applied to the Army Board for Correction of Military records requesting a 20-Year Letter so he could qualify for nonregular retirement benefits.

12.  On 24 December 2007, the applicant wrote a personal letter to the Board that states he is entitled to retirement benefits because the Social Security Administration determined he was 100 percent disabled as of 13 May 1991, and that he could no longer physically perform work related duties.  He further states, in effect, that since the Social Security Administration determined he was disabled it also meant he was medically unfit for retention in the Army Reserve and not able to perform the duties required of a Soldier.  He requested that the Board issue him a 15-year qualifying retirement letter.

13.  In the processing of this case, an advisory opinion was obtained from HRC-STL on 26 February 2009.  In the opinion, the HRC-STL stated that the applicant was not entitled to receive a 15-year retirement letter because the applicant's records did not show that he was placed in the Retired Reserve under the Early Reserve Retirement Eligibility Disabled Members of the Selected Reserve or the Transition Assistance Management Program.  The opinion further states that there are no records to show that the applicant requested a medical review or consideration by a Physical Evaluation Board.

14.  On 2 April 2009, the applicant submitted a rebuttal to the advisory opinion.  In his rebuttal, the applicant states he is requesting a 15-year retirement letter and included medical and Social Security Administration documents that shows he was certified as disabled on 13 May 1991 in support of his rebuttal statement. 

15.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) provides that upon a Soldier's application for retired pay, a computation to determine the number of years of qualifying service, years for percentage purposes, and years for basic pay purposes will be made.

16.  Army Regulation 135-178, paragraph 12-1, Medically unfit for retention, states that Army Reserve enlisted Soldiers who are no longer qualified for retention by reason of medical unfitness under the standards of AR 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation Including Retirement) will be discharged unless they are granted a waiver of the medical disqualification or are eligible and request transfer to the Retired Reserve under Army Regulation 140-10, paragraph 6-1.

17.  Army Regulation 140-10, paragraph 6-1, Eligibility, states that reservists are eligible for transfer to the Retired Reserve if they are medically disqualified not as a result of their own misconduct, for retention in an active status (ready reserve) or entry on active duty, regardless of the total years of service completed.

18.  Public Law 103-337, dated 5 October 1994, established early Reserve Component retirement eligibility for Soldiers involuntarily separated from the Selected Reserve due to physical disability during the period 5 October 1994 through 30 September 1999 (later extended through 31 December 2001).  Eligibility is based on a minimum of 15 years of qualifying service toward Reserve Component retirement.  Title 10, U.S. Code, section 12731a(a)(1) was amended to extend the Early Reserve Retirement Eligibility for Disabled Members to the period beginning on 23 October 1992 and ending on 1 October 1999 to Soldiers who attained 15 year of retirement eligibility after 1 October 1991. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he should receive a 15-year retirement letter because he was and is medically unfit for Army retention standards based on his 100 percent disability findings by the Social Security Administration. 

2.  Upon application for retirement benefits at age 60, the applicant was informed by appropriate authorities that he, in fact, was not qualified to receive retirement benefits for he had only 19 years of qualifying service for nonregular retirement pay and benefits.  The applicant was transferred from the USAR Control Group (Reinforcement) to the Retired Reserve upon the conclusion of his last enlistment period.  The reason for transfer was he had 20 years of Reserve Duty (not to be confused with 20 qualifying years of Reserve Component duty for nonregular retirement pay). 

3.  The applicant voluntarily transferred to the USAR Control Group (Reinforcement) on 30 June 1991.  He remained in this status and received 15 membership points for nonregular retirement pay for 4 years until his transfer to the Retired Reserve.  During this period, the applicant did not earn inactive duty points or extension course points so as to attain additional qualifying years of service (50 qualifying points for retirement within one qualifying year). 

4.  Furthermore, since the applicant authenticated his retirement point's eligibility statement on 4 December 1988 which shows he had 15 years of qualifying service as of 13 February 1988, he knew he did not have 20 years of qualifying serve when he transferred to the Control Group (Reinforcement) less than 3 years later.
5.  While it is unfortunate that the applicant was injured such that he was entitled to collect disability benefits under the Social Security Administration, his physical status or handicap within the Social Security Administration does not have a bearing on his status within the USAR.  There are ways that the applicant could have completed one more year of qualifying service so as to be eligible for nonregular retirement benefits at age 60 through extension course credits and inactive duty training points for attending drills for points only with an Individual Mobilization Augmentee Detachment. 

6.  Regrettably, the applicant is not entitled to a 15-year retirement letter for nonregular service because this program was not in effect at the time he transferred from the Selected Reserve to the USAR Control Group (Reinforcement) in June 1991.  The law was not passed until October 1994, and it was made effective for the period beginning 23 October 1992.

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
      
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)                                         AR20080015240



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ABCMR Record of Proceedings (cont)                                         AR20080015240



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