IN THE CASE OF:	

		BOARD DATE:	  12 February 2009

		DOCKET NUMBER:  AR20080017715 


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 she be issued a 20-year retirement letter, based on her having served 20 years, 5 months, and 7 days of service for base pay.  

2.  She states she went before a review board (presumed to be a physical  evaluation board [PEB]) in October 1998.  She states she was told in October 1998 she could not attend monthly drills until a decision was made by a the review board.  She states that during the period from 1998 to until her discharge in December 2000 she was not allowed to attend monthly training.

3.  The applicant provides, in support of her application, copies of her Medical Evaluation Board (MEBD) with narrative summary (NARSUM), four letters concerning her medical status, her orders for separation, and her 
AHRC Form 249-2-E (Chronological Statement of Retirement Points), dated 
18 September 2008.

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 completed two periods of active service in the Regular Army from 25 June 1973 to 15 April 1976 and from 9 October 1981 to 5 March 1987.  She then enlisted in the U.S. Army Reserve on 8 December 1988 and served continuously until her discharge.

3.  The applicant's complete military service records were not available for review.  The following evidence was provided by the applicant.

4.  On 14 July 1997, the applicant's commander requested a medical review board be conducted on the applicant based on her having received a permanent profile on 31 January 1997.

5.  On 28 September 1998, an MEBD referred the applicant to a PEB for left shoulder impingement syndrome, cervical spondylosis, peripheral polyphasic sensory neuropathy, sensory neural hearing loss in her left ear, status-post left and right inguinal hernia repairs, hypertension, depression, lumbar spondylosis, and status-post partial hysterectomy.

6.  A record of the PEB findings and recommendation was not available for review.

7.  A letter, dated 6 October 1998, from 755th Adjutant General company (Postal), Texarkana, Texas notified the applicant that a medical review board had found her unable to perform her duties as a postal clerk and recommended that she be separated from the service.

8.  A letter from the U.S. Army Physical Disability Agency (USAPDA), dated 
15 December 2000, forwarded the applicant's orders for discharge with severance pay.  USAPDA indicated in the letter the applicant had 20 years, 
5 months, and 7 days of service for basic pay.

8.  USAPDA Orders D242-2, dated 15 December 2000, discharged the applicant effective 31 December 2000 with a percentage of disability of 20 percent based on 9 years and 24 days of active service.

9.  The applicant's AHRC Form 249-2-E shows that she was only awarded  
15 membership points for her retirement years ending 7 December 1999 and 2000.  The form shows she had a total of 18 years, 4 months, and 12 days of service qualifying for retirement.
10.  Title 10, United States Code (USC), Chapter 1223 (Retired Pay for Non-Regular Service), Section 12731 (Age and Service Requirements) provides, in pertinent part, that a person is entitled, upon application, to retired pay if the person is age 60 and has performed at least 20 years of qualifying service.  While a qualifying year is determined to be a year in which a minimum of 
50 retirement points have been credited for a reservist, it is a full year (365 or 366 days, as applicable) for a member of the Regular Army.

11.  Army Regulation 135-180 states in paragraph 2-3, that a twenty-year letter will be issued to the Reserve Component Soldier within 1 year after they complete 20 years of qualifying service for retirement.  This letter will be issued by the Commander, Army Reserve Personnel Command (ARPERSCOM) (now known as Human Resources Command [HRC], St. Louis) for USAR soldiers.  The letter, once issued, may not be withdrawn or revoked.  

12.  Army Regulation 635-40 also provides that a Soldier may be separated with severance pay if the Soldier's disability is rated at less than 30 percent, if the Soldier has less than 20 years of service as defined in 10 USC 1208 and if the Soldier's disability occurred in the line of duty and is the proximate result of performing active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's AHRC Form 249-2-E shows she had 18 years, 4 months, and 12 days of qualifying service for non-regular service retirement.  Therefore, the applicant was not issued a 20-year letter because she did not have 20 qualifying years for retirement.  

2.  The proceedings of the applicant's PEB and any appeals were not available for review.  Therefore, there is no evidence available to determine the reason for the length of the delay in issuing the applicant's orders for discharge with severance pay.  

3.  The applicant had 20 years, 5 months, and 7 days of service for basic pay.  However, as indicated on her AHRC Form 249-2-E, during her retirement years ending 7 December 1999 and 2000 she did not receive the required 
50 retirement points to constitute a qualifying year for retirement.  There is no evidence that the applicant, and by her own statement she had not, attended any monthly training drills to be awarded additional retirement points for those two retirement years.

4.  There are no provisions for awarding retirement points for service not performed.
5.  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 that 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
      
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)                                         AR20080017715





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ABCMR Record of Proceedings (cont)                                         AR20080017715



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