IN THE CASE OF:
BOARD DATE: 19 May 2009
DOCKET NUMBER: AR20080018434
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 he be allowed to retire with 18 "good years" and 2536 "good points."
2. The applicant states, in effect, he was not allowed to reenlist in order to complete his 20 years. He contends that the reason he could not reenlist is because he was in a major car accident.
3. The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), discharge orders, an NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) for the period ending 7 January 1997, an Army National Guard (ARNG) Retirement Points History Statement, and medical documentation in support of this 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 Army Board for Correction of Military Records (ABCMR) to excuse an applicants 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 applicants 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 service in the United States Air Force, the applicant enlisted in the ARNG on 8 January 1988 and was discharged on 7 January 1997. On 14 August 1997, the applicant reenlisted in the ARNG for 6 years and was discharged at the end of his term of service on 13 August 2003.
3. The applicant's ARNG Retirement Points History Statement shows he had 2536 total career points, 2504 total points for retired pay, and 18 years of creditable service for retired pay at the time of his discharge.
4. Item 26 (Reenlistment Eligibility) of the applicant's NGB Form 22 for the period ending 13 August 2003 shows the entry "RE-1." This reentry eligibility (RE) code indicates he was qualified for reenlistment.
5. There is no evidence in the applicant's records which indicates he was denied the opportunity to reenlist prior to his discharge on 13 August 2003.
6. The medical documentation provided by the applicant shows he was involved in a motor vehicle accident on 8 April 2005. The medical documents also show he was hospitalized from 8 April 2005 through 29 April 2005.
7. National Guard Regulation 600-200 (Enlisted Personnel Management) provides policies and procedures for the management of enlisted personnel. In pertinent part, it states that verification of prior service RE codes from the appropriate agencies will be made and it provides a description of RE codes for all Armed Forces. It states that RE code 1 will be given when the Soldier is eligible for reentry.
8. Title 10, U.S. Code, section 1176(b)(1), states that a Reserve enlisted member serving in an active status who is selected to be involuntarily separated (other than for physical disability or for cause) or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause) and who on the date on which the member is to be discharged or transferred from an active status is entitled to be credited with at least 18 but less than 19 years of service may not be discharged, denied reenlistment, or transferred from an active status without the member's consent before the earlier of the date on which the member is entitled to be credited with 20 years of qualifying service or the second anniversary of the date on which the member would otherwise be discharged or transferred from an active status.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request that he be allowed to retire has been carefully reviewed and found to be without merit.
2. The applicant was separated at the end of his term of service. He was qualified for retention in the service at the time of his separation on 13 August 2003. It is not clear why the applicant did not reenlist prior to the motor vehicle accident nearly 2 years later on 8 April 2005.
3. The applicant did not complete the required service to qualify for a military retirement. As a result, there is no basis to grant the applicant's request.
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) AR20080018624
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ABCMR Record of Proceedings (cont) AR20080018434
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