IN THE CASE OF:	  

		BOARD DATE:	      17 MARCH 2009

		DOCKET NUMBER:  AR20080016616 


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, a 15-year Reserve Component retirement or that he be issued a 15-year letter.  He also requests, in effect, that his U.S. Army Reserve (USAR) discharge orders, dated 6 May 1992, be revoked and that he be transferred to the Retired Reserve.

2.  In an application, dated 25 October 2008, the applicant states that he completed 18 years of service when he was medically discharged due to an injury.  He contends that he has now learned that new regulations may change his eligibility to receive benefits.  He is requesting clarification on his discharge from the USAR.  He contends that he was given a discharge due to medical disqualification for retention while in the hospital recuperating from surgery and that he was told this was the best his unit could do for him at the time.  However, since the unit is no longer in existence he cannot get clarification on whether or not he is eligible for retirement.  He points out that he will be 60 years old in March [2009], that he feels that his years of dedicated service should not go unrewarded, and that he is a Vietnam veteran who was awarded the Purple Heart and the Combat Action Ribbon.

3.  In an application, dated 4 November 2008, the applicant states that in 1991 he had surgery on his back and became disqualified for worldwide service.  He contends that his commander instructed him to request discharge from the USAR.  However, he now knows that if he had a permanent medical disqualification that prevented him from performing his duties as a reservist, he 
should have been transferred to the Retired Reserve.  He indicates that he was 
not asking for the discharge from the USAR, but he could not perform his duties.  He states that since he completed 18 years of Reserve service he qualified for immediate transfer to the Retired Reserve if he was medically disqualified from the service.  He further states that because neither discharge nor the Retired Reserve status required him to complete drills, serve on active duty, or report for individual training days or other duties, it would have been foolish for him to ask for a discharge rather than retirement.  He states that had he been properly advised of his options, he would have elected medical transfer to the Retired Reserve.

4.  The applicant provides two Army Board for Correction of Military Records (ABCMR) applications; a memorandum, dated 30 September 1991; an ARPC Form 249-E (USAR Personnel Command Chronological Statement of Retirement Points), dated 13 February 2007; an award certificate for the Purple Heart; a fact sheet; a letter, dated 5 September 1991, from a neurologist; a DD Form 214 MC (1900) (Armed Forces of the United States Report of Transfer or Discharge); a memorandum, dated 15 February 1995; USAR discharge orders; and a combat history record in support of his application. 

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 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.  After having prior active service in the U.S. Marine Corps (USMC), which included combat service in Vietnam and inactive service in the USMC Reserve, the applicant enlisted in the USAR on 31 August 1978.

3.  On 30 September 1991, the applicant, having been found to have a medical condition which rendered him medically disqualified for further retention in the USAR, elected to be discharged from the USAR.  As a result, he was honorably discharged from the USAR on 6 May 1992.



4.  The applicant’s ARPC Form 249-E, dated 13 February 2007, shows he had 18 years of qualifying service for retirement.

5.  Public Law 103-337, dated 5 October 1994, established early reserve 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 years of retirement eligibility after 1 October 1991.

6.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) states, in pertinent part, that eligible Soldiers must request transfer/assignment to the Retired Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been carefully considered.  

2.  The Early Reserve Retirement Eligibility for Disabled Members law does not apply in this case.  The applicant was discharged from the USAR prior to enactment of the law authorizing early retirement.  In addition, although he completed his 15 years of qualifying service under this law by 1 October 1991, the law established the period of retirement as beginning on 23 October 1992, also after his discharge from the USAR.  Therefore, there is no basis for granting the applicant's request for a 15-year Reserve Component retirement or that he be issued a 15-year letter. 

3.  Evidence of record shows the applicant elected to be discharged from the USAR on 30 September 1991.  In the absence of evidence to the contrary, it must be presumed that his request was properly processed.  In addition, transfer to the Retired Reserve, when he had not completed 20 years of qualifying service for a normal Reserve retirement, would not have allowed the applicant to draw retired pay at age 60.  Therefore, there is no basis for granting the applicant's request that his USAR discharge orders be revoked and that he be transferred to the Retired Reserve.



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.



      __________XXX____________
               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)                                         AR20090001490



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ABCMR Record of Proceedings (cont)                                         AR20080016616



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