IN THE CASE OF:	  

		BOARD DATE:	        12 MAY 2009

		DOCKET NUMBER:  AR20080019884 


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, correction of his records to show he was medically retired based on 24 years of military service.  

2.  The applicant states, in effect, that he completed 24 years of military time.  He contends that his military records are in error and should reflect more than 13 years of military service.  He states his military pay stubs show 24 years of military service, but his "201 file" shows only 13 years of military service and 1,600 total creditable points for retirement.

3.  The applicant provides several supplemental letters and the following documents in support of his application:

   a.  Tab 1 - Honorable Discharge Certificate, dated 23 July 1982; DD Form 
214 (Certificate of Release or Discharge from Active Duty) for the periods ending on 20 October 1980 and on 23 July 1982;

   b.  Tab 2 - Letter, date stamped 20 December 2008, requesting medical records, and two additional letters requesting his medical evaluation board packet; 

   c.  Tab 3 - NGB Form 22 (National Guard Bureau Report of Separation and 
Record of Service) for the period ending 24 August 2003; discharge orders 
from the U.S. Army Reserve, dated 7 September 2007; and Record of Counseling/Interview, dated April 1982; reassignment orders, dated 12 January 2006; DD Form 4/1 (Enlistment/Reenlistment Document), dated 25 August 2003 
and Page 1 of DA Form 2-1 (Personnel Qualification Record - Part II);
   
   d.  Tab 4 - Three letters, date stamped 21 January 2009, 26 January 2009, 
and 30 January 2009, respectively; USARC Form 62-R (Sponsor's Guide and 
In-Processing Checklist);

   e.  Tab 5 - Letter, date stamped 13 February 2009 and Leave and Earning
Statements for the periods covering October 1980 through June 1993;

   f.  Tab 6 - Letter, receipt date 10 March 2009; Army/American Council on 
Education Registry Transcript, issued on 3 January 2006; and a Chronological Statement of Retirement Points, dated 12 January 2009; and 

   g.  Tab 7 - Electronic Mail Messages (six pages); a letter from a retired 
colonel, dated 26 March 2009; and a memorandum, subject: Medical Documentation Review for SPC ________, dated 10 May 2006.

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 served in the Army National Guard from 9 April through 29 December 1980.  He completed 8 months and 21 days of military service during this period.  

3.  The applicant served in the Regular Army from 23 February 1981 through
23 July 1982 and completed 1 year, 5 months, and 1 day of active military service during this period.

4.  After a break in service, the applicant enlisted in the Army National Guard on 14 July 1984.  He continued to serve in the Army National Guard until 29 November 1988.  This service equals 4 years, 4 months, and 16 days. 

5.  After a break in service, the applicant enlisted in the Army National Guard again on 28 September 1989.  He was discharged from the Army National Guard on 27 September 1991 at his expiration of term of service.  He completed 
2 years of military service during this period.  

6.  After a break in service, the applicant enlisted in the Army National Guard 
on 9 December 1992.  He was discharged on 1 November 1995 under the provisions of National Guard Regulation 600-200, paragraph 8-27g by reason of unsatisfactory participation.  He completed 2 years, 10 months, and 23 days military service during this period.  On the following date, he was transferred to the U.S. Army Reserve Control Group (Reinforcement) for completion of his contractual obligation.  

7.  The applicant enlisted in the Army National Guard on 21 August 1996.  He was discharged on 24 August 2003 after completing 7 years and 4 days of military service.  On the following date, he was transferred to the U.S. Army Reserve.  

8.  A Ninety Fourth Regional Readiness Command (RRC) Memorandum, dated 10 May 2006, indicates the applicant's physical profile had been reviewed and listed the following recommendations: (a) "Soldier does not meet medical retention standards in accordance with (IAW) AR 40-501, Chapter 3…"; (b) Soldier's current PULHES 133111 with a physical category of C…"; (c) If this Soldier has more than 15 years but less than 20 years of qualifying service for retirement, he/she needs to complete a DA Form 4651-R requesting a transfer to the Retired Reserve under 'Early Retirement due to Medical Disqualification'…"; (d) If Soldier does not meet the criteria in c above, a DA Form 4651-R requesting transfer to the Retired Reserve or medical discharge due to medical reasons will be completed and forwarded to the 94th RRC G-1 for processing"; and (e) Soldiers that do not meet retention standards have an option to request continuance in the active U.S. Army Reserve.  If this Soldier desires to make a request for consideration of this action, guidelines for packet submission can be found in AR 40-501, Chapter 9, Paragraph 9-11."

9.  The applicant was discharged from the U.S. Army Reserve on 7 September 2007.

10.  There is no record of Medical Evaluation Proceedings or Physical Evaluation Proceedings.  

11.  The applicant’s Chronological Statement of Retirement Points, dated 28 January 2009, for the retirement year beginning on 9 April 1980 and ending on 7 September 2007 shows he completed 14 years, 7 months, and 3 days of qualifying service for retired pay.  He was credited with 1,808 total retirement points.

12.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

13.  Sections 12731 through 12739 of Title 10, United States Code, authorize retired pay for Reserve Component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.  The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year, and which count as qualifying years of service for retirement benefits at age 60.

14.  Title 10, U. S. Code, section 1315 provided the Temporary Early Retirement Authority (TERA) for the active force for the period 23 October 1992 through 31 December 2001.  The Secretary of the Army could authorize a member with at least 15 but less than 20 years of creditable service a length of service retirement.  The Army did not utilize this provision of the law during fiscal year 2001 except for members who were recommended for discharge due to physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he completed 24 years of military service and his military records are in error because they should reflect more than 13 years military time.  The applicant’s Chronological Statement of Retirement Points shows he completed 14 years, 7 months, and 3 days of qualifying service for retired pay and 1,808 total retirement points.  Therefore, there is insufficient evidence on which to base correction of his records to show he completed 
24 years of military service.

2.  The law provided the TERA program for the active force for the period 
23 October 1992 through 31 December 2001 for a member with at least 15 but less than 20 years of creditable service for a length of service retirement.  Unfortunately, the applicant only had 14 years of creditable service for a length of service retirement.  Therefore, the applicant does not qualify for a medical retirement.

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)                                         AR20080019884



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ABCMR Record of Proceedings (cont)                                         AR20080019884



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