IN THE CASE OF:	  

		BOARD DATE:	  	  19 March 2009

		DOCKET NUMBER:  AR20080017018 


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 Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-Year Letter).

2.  The applicant states, in effect, based on his creditable military service and separation based on medical disqualification he should be issued a Selected Reserve 15-Year Letter.

     a.  The applicant states that he served two tours of duty in Vietnam from late 1967 to 1969 and also served various periods with breaks in service during his military career.

     b.  The applicant states he was medically disqualified - not the result of his own misconduct, informed that he qualified for TRICARE and retirement benefits, was assigned to the Retired Reserve, and awarded 20 percent disability by the Department of Veterans Affairs (VA) due to Type II diabetes associated with agent orange.

     c.  The applicant concludes by stating, in effect, he is now 60 years old and, if he had known that he would lose his retirement, he would have fought the medical discharge.

3.  The applicant provides copies of Headquarters, 80th Division Institutional Training, Richmond, Virginia, Orders 03-194-00016, dated 13 July 2003;
AHRC Form 249-2-E (Chronological Statement of Retirement Points), dated
7 December 2006; page 1 of a DD Form 2656 (Data for Payment of Retired Personnel), undated; DD Form 108 (Application for Retired Pay Benefits), dated 4 May 2008; Headquarters, U.S. Army Human Resources Command (USA HRC), Transition and Separations Branch, St. Louis, Missouri, memorandum, dated 15 September 2008; and an electronic mail (email) string, dated
22 - 23 September 2008, subject:  Retirement.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military personnel records show he was born on 2 January 1949.  He enlisted in the U.S. Army and entered active duty in the Regular Army (RA) for a period of 3 years on 27 June 1967.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 71H (Personnel Specialist).  The applicant served in the Republic of Vietnam from 29 November 1967 to 3 July 1969.

2.  The applicant's military personnel records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he entered active duty this period on 27 June 1967, was honorably released from active duty on 8 June 1970, and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining military service obligation, which terminated on 26 June 1973.  At the time he had completed
2 years, 11 months, and 12 days of net service this period and 2 years,
11 months, and 12 days of total active service.

3.  The applicant's military personnel records contain a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service in the Army National Guard of West Virginia (WVARNG)) that shows the applicant enlisted in the Army National Guard of the United States (ARNGUS) and WVARNG on
1 March 1972 and was honorably discharged on 28 February 1973.  At the time he had completed 1 year of net service this period and 5 years, 8 months, and
4 days of total service for pay.

4.  The applicant's military personnel records contain an NGB Form 22 that shows the applicant enlisted in the ARNGUS and WVARNG on 31 October
1973 and was honorably discharged on 30 October 1977.  At the time he had completed 4 years of net service this period; 6 years of prior service; and
10 years of total service for pay.

5.  The applicant's military personnel records contain a copy of Headquarters, 80th Division Institutional Training, Richmond, Virginia, Orders 03-194-00016, dated 13 July 2003, that show the applicant was released from his unit of 
assignment on 28 May 2003 and assigned to the USAR (Retired Reserve),
St. Louis, Missouri, under the authority of Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) based on medical disqualification, not the result of his own misconduct.

6.  The applicant’s Total Army Personnel Data Base (TAPDB) electronic record, accessible via the USA HRC Integrated Web Services (IWS) portal contains the applicant’s ARPC Form 249-E.  This document shows the applicant initially entered the RA on 27 June 1967 and that he also served in the USAR and ARNG during the period of service under review that terminated on 28 May 2003 when he was transferred to the USAR (Retired Reserve) effective 29 May 2003. This document also shows the applicant had breaks in service from 9 August 1973 to 30 October 1973, from 16 November 1978 to 20 November 1981, from 22 November 1985 to 10 April 1997, and that his Pay Entry Basic Date is
13 February 1982.  The online automated ARPC Form 249-E generated from the TAPDB electronic record documents the foregoing service in detail and shows the applicant was credited with 2,230 total retirement points and 15 years,
11 months, and 13 days of qualifying service for retirement.

7.  The applicant’s military personnel records are absent evidence of any Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) proceedings.

8.  In support of his application, the applicant provides the following documents.

     a.  Headquarters, 80th Division Institutional Training, Richmond, Virginia, Orders 03-194-00016, dated 13 July 2003 and AHRC Form 249-2-E, dated
7 December 2006.  These two documents were previously introduced and considered in this Record of Proceedings.

     b.  Page 1 of a DD Form 2656, undated and a DD Form 108, dated 4 May 2008 that show, in pertinent part, the applicant applied for retired pay benefits effective 2 January 2009.  The DD Form 2656 also shows that the applicant indicated he was receiving VA compensation for disability with an effective date of payment of 1 June 2001.

     c.  Headquarters, USA HRC, Transition and Separations Branch, St. Louis, Missouri, memorandum, dated 15 September 2008.  This document shows that the Chief, Transition and Separations Branch, informed the applicant that to be eligible for retired pay at age 60, under Title 10, U.S. Code, sections 12731 - 12737, a Reserve Soldier or former Reserve Soldier must have completed a minimum of 20 qualifying years of service, the last 8 years of which must have been in a Reserve component.  This document also advised the applicant that, 

since 1 July 1949, a Reserve Soldier must have earned at least 50 retirement points per year for that service to be creditable for retirement and that service in an inactive reserve status, such as the Retired Reserve, is not creditable for retirement purposes.  This document further shows that an audit of the applicant’s military records shows he completed 15 years, 11 months, and
13 days of qualifying service for retirement and that he is ineligible to receive retired pay.

     d.  An email string, dated 22 - 23 September 2008, subject:  Retirement.  The email message from the applicant, in pertinent part, shows the applicant informed an Army official that he had just received a letter concerning his application for retirement that advised him he is not qualified for retirement or TRICARE benefits and he inquired into his options.  The email from the Army official in response to the applicant’s inquiry informed him that to be qualified for retired pay he would have to receive a 15-Year Letter and that he could contact the Army Board for Correction of Military Records (ABCMR) concerning the matter.

9.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Retired Pay, Transition and Separations Branch, USA HRC, St. Louis, Missouri, who confirmed the applicant completed 15 years,
11 months, and 13 days of qualifying service for retirement.  The advisory official added that further review of the applicant’s retirement application determined there is not enough information to determine that the applicant is medically disqualified for a 15-Year Letter and, under current law, the applicant’s service does not fulfill the requirements for retirement.

10.  On 22 January 2009, the applicant was provided a copy of the Chief, Retired Pay, Transition and Separation Branch, USA HRC, advisory opinion in order to have the opportunity to respond to its contents.  On 3 February 2009, the applicant submitted his rebuttal to the advisory opinion rendered in his case.

     a.  The applicant states that the Department of VA awarded him 20 percent disability for Type II Diabetes associated with agent orange.  In support of his rebuttal to the advisory opinion, he provides copies of two Department of VA, Huntington Regional Office, Huntington, West Virginia, letters, dated 9 December 2002 and 26 May 2004.  In summary, the first letter shows the VA notified the applicant it had received his direct deposit sign-up form and the second letter notified him of an adjustment in the amount he would receive from the VA based upon his receipt of drill pay for 53 training days during fiscal year 2002.

     b.  The applicant states he failed a physical examination that resulted in him being discharged and transferred to the Retired Reserve.  He adds, although the DA Form 4187 (Personnel Action) is not complete, his orders show he was transferred to the Retired Reserve.  In support of his rebuttal argument he provides the following documents.

         (1)  A copy of Charleston Area Medical Center, Department of Medical Imaging, Memorial Division, Charleston, West Virginia, Radiology Report, dated 13 January 2000, that shows an MRI impression revealed right paracentral disc herniation at C6-7.

         (2)  A copy of a DA Form 3349 (Physical Profile), dated 20 July 2000, that shows the applicant was issued a permanent profile on 20 July 2000.

         (3)  A copy of The Federal Strategic Health Alliance (FEDS-HEAL), memorandum, dated 30 July 2002, subject:  Results of Retention Physical/ Annual Dental Examination, that shows, in pertinent part, the applicant had one or more abnormal findings that require the applicant to follow-up with a civilian medical or dental provider; the results of the physical examination require the commander to review and/or take appropriate action; and that the exam was sent to the 99th Regional Support Command (RSC) for review.

         (4)  Headquarters, 99th RSC, Corapolis, Pennsylvania, AFRC-CPA-MD memorandum, dated 17 September 2002, subject:  Physical Examination Results for [Applicant’s Rank, Name, and Social Security Number] that shows the
99th RSC Command Surgeon reviewed the physical examination of the applicant, determined the applicant did not meet retention standards, and that the physical examination results would be sent to the 99th RSC, G1, for appropriate personnel administrative action.

         (5)  Headquarters, 99th RSC, Corapolis, Pennsylvania, AFRC-CPA-PR memorandum, dated 20 September 2002, subject:  Notification of Medical Unfitness for Retention [Applicant’s Rank, Name, Social Security Number, and Address] that shows the Military Personnel Officer, Office of the Deputy Chief of Staff, G1, 99th RSC, notified the applicant that, as a result of a medical determination, the applicant was found to be medically disqualified for continued service in the USAR under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  This document also shows that the applicant was afforded the option of requesting reassignment to the Retired Reserve, requesting an honorable discharge from the USAR, or requesting a review of his medical disqualification by a Physical Evaluation Board (PEB).  This document 
further shows that the applicant was required to complete the endorsement indicating his option regarding his medical disqualification within 30 calendar days of receipt of the memorandum, that failure to respond within 30 calendar days would constitute a waiver of all rights, and he would be discharged with an honorable discharge.

         (6)  A blank pre-printed DA Form 4187, from the Commander, 99th RSC, Attention:  AFRC-CPA-PR-D, Corapolis, Pennsylvania, undated, subject:  Early Eligibility Retirement Disability, that, in pertinent part, contains the statement,  “[a]ccording to my DARP Form 249 and counseling by my unit, I have at least
15 years but less than 20 years of qualifying service for non-regular retired pay.  I understand that I am subject to involuntary separation from the Selected Reserve solely because I am unfit due to medical disability.  I have the opportunity to elect early qualification for retired pay at age 60 provided that I elect transfer to the Retired Reserve.  I am aware that I may not be reassigned from the Retired Reserve without the approval of the Secretary of the Army.”  The DA Form 4187 is absent any evidence that the applicant completed the form or attached any relevant documentation, and it does not contain the applicant’s signature.

11.  Army Regulation 135-178 (Enlisted Administrative Separations), Chapter 6 (Convenience of the Government), provides that a Soldier may be separated for the convenience of the Government on the basis of the reasons set forth in this chapter.  Paragraph 6-6 (Not medically qualified under procurement medical fitness standards), in pertinent part, provides that a basis for discharge exists when a medical finding of the Staff Surgeon that the Soldier has a medical condition that (1) would have permanently disqualified him or her from entry in the Army had it been detected or had it existed at the time of enlistment; and
(2) does not disqualify him or her from retention under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3.

12.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), Chapter 6 (Transfer to and from the Retired Reserve) provides policy and procedures on the transfer to and from the Retired Reserve.  Paragraph 6-1 (Eligibility) shows that assignment to the Retired Reserve is authorized, and an eligible Soldier must request transfer if they, in pertinent part, are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty, regardless of the total years service completed.

13.  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 has competed at least 15 and less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, he should be issued a Selected Reserve
15-Year Letter because he had more that 15 years of qualifying service when he was medically disqualified for retention and honorably discharged from the USAR.

2.  The evidence of record shows the applicant was a Selected Reserve member with at least 15 years and less than 20 years of qualifying service when he was notified on 20 September 2002 that, as a result of a medical determination, he was found to be medically disqualified for continued service in the USAR under the provisions of Army Regulation 40-501, Chapter 3.  The evidence of record also shows that the applicant was honorably discharged on 28 May 2003 and transferred to the USAR (Retired Reserve), effective 29 May 2003.

3.  The evidence of record shows 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 be treated as having met the service requirements and be provided with the notification required if he has competed at least 15 and less than 20 years of service.  It is not clear why the applicant was not issued a Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-Year Letter) prior to his discharge from the Selected Reserve.  Nonetheless, based on the evidence of record in this case, it would normally be appropriate to correct the applicant's records by issuing a Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-Year Letter).  However, as the applicant has recently turned age 60, rather than issuing the applicant a 15-year letter it would be more appropriate to show that he is eligible for retired pay by reason of being found unfit for retention in the Selected Reserve after completing over 15 years of qualifying service for retired pay, that he applied for retired pay prior to turning age 60, and that his application was processed and approved in a timely manner.

4.  As a matter of information, a Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant's SBP status/coverage.  The applicant is advised to contact her nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at: http://www.armyg1.army.mil/RSO/rso.asp.

BOARD VOTE:

____X____  _____X___  ____X____  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 Department of the Army records of the individual concerned be corrected by showing that he is eligible for retired pay by reason of being found unfit for retention in the Selected Reserve after completing over 15 years of qualifying service for retired pay, that he applied for retired pay prior to turning age 60, and that his application for retired pay was processed and approved in a timely manner.




      __________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)                                         AR20080017018



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ABCMR Record of Proceedings (cont)                                         AR20080017018



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