IN THE CASE OF:	  

		BOARD DATE:	        07 MAY 2009

		DOCKET NUMBER:  AR20090002463 


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 reconsideration of the Board's denial of his request to award him sufficient retirement points to show that he earned in excess of 15 years of qualifying service for retired pay at age 60, and that he be issued a letter certifying his eligibility for retired pay at age 60 (15 year letter).

2.  The applicant states that he has submitted additional leave and earnings statements (LESs).

3.  The applicant continues that while the retirement points that he was credited with as a result of these additional LESs did not give him sufficient qualifying years of service to be issued a 15 year letter, errors still exist in his retirement point summary.  These errors were caused by his Army National Guard (ARNG) unit not submitting a record of the inactive duty points he earned from 1984 to 1986.  He believes that the absence of inactive duty points in his ARPC Form 249-E (Chronological Statement of Retirement Points) along with the fact that he was awarded the Army Reserve Components Achievement Medal in 1983 and 1987, verifies that he did in fact earn retirement points during this period.

4.  The applicant provides extracts from his Army records, his civil service records, and his Navy records.

5.  The applicant also provides a self-authored letter, dated 29 April 2009; three certificates of recognition, dated 2008 from the Newport News Sheriff's Office, dated 2007 from the Newport News Sheriff's Office, and July 1969 from the Chapel of Four Chaplains; a certificate of achievement, dated 30 June 2005; five Honorable Discharge Certificates; his National Guard Bureau Form 22 (Report  of Separation and Record of Service) for the period ending 7 March 2000; a Certificate of Apprenticeship; and a Notification of Personnel Action, dated          3 January 1977.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070015895, dated 11 March 2008.

2.  The applicant now provides new evidence in support of his previous request that requires reconsideration.

3.  The applicant's military records could not be located.  The information contained herein was derived from the documents submitted by the applicant and documents obtained from the Office of the Chief, Legislative Liaison (OCLL).

4.  During the prior consideration, it was determined that:

   a.  The applicant served in the U.S. Navy Reserve (USNR) from 29 March 1962 to 27 January 1963 (a total of 9 months and 29 days).  He enlisted in the Regular Army on 28 January 1963.  He successfully completed basic combat training, advanced individual training, and airborne training in military occupational specialty 111.07 (light weapons infantryman).  

	b.  On 25 February 1964, a Medical Evaluation Board (MEB) found the applicant unfit for military service by reason of grand mal epilepsy.  The MEB Narrative Summary shows that following his admittance to Womack Army Hospital because of pain and swelling of the left testicle, a nurse observed him experiencing two grand mal seizures; and that, approximately 3 years earlier, he had been diagnosed and treated for this condition at a civilian hospital.  Administrative separation for a medical condition which existed prior to service (EPTS) was recommended.

	c.  On 3 February 1964, the applicant submitted a request for discharge because of an EPTS medical condition.  He acknowledged in the request that he had been advised that he suffered from a condition that appeared not to be incident to or aggravated by military service; that his right to have his case reviewed by a Physical Evaluation Board (PEB) had been explained to him; that he chose not to exercise that right; and that he understood that his separation 

would be without disability retirement or disability severance pay.  On 18 March 1964, he was honorably discharged.  Item 24a(2) (Other Service) on his DD Form 214 for the period ending 18 March 1964 shows the entry, “0 0 0.”  

	d.  The applicant provided documentation which showed he subsequently served in the USAR and the ARNG.  In completing several medical examinations during this service, he specifically denied any history of a seizure disorder.  He provided two USAR Honorable Discharge Certificates, dated 7 July 1978 and 
28 June 1994.  He provided a DD Form 214 for the period ending 30 June 1997 which showed he was on active duty from 4 March 1997 through 30 June 1997 and that he had completed 17 years, 9 months, and 6 days of prior inactive service.  He provided a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) that showed he enlisted in the Virginia Army National Guard on 13 June 1996 and was honorably discharged on 7 March 2000 for being medically unfit for retention.  He also provided an ARNG Retirement Points History Statement, prepared on 17 July 2007, which showed he had completed 12 years, 10 months, and 26 days of qualifying service for retirement.         

	e.  The applicant provided a DA Form 2-1 (Personnel Qualification Record) which showed he received the first award of the Army Reserve Components Achievement Medal (ARCAM) on 30 September 1979, the second award of the ARCAM on 30 September 1983, and the third award of the ARCAM on 
30 September 1987.  (Prior to 28 March 1995, the ARCAM was awarded upon completion of 4 consecutive years of qualifying service.  Effective 29 March 1995, it is awarded upon completion of 3 consecutive years of qualifying service). His service personnel records contained a DA Form 2-1 that showed he received the third award of the ARCAM on 27 June 1992.  However, his ARNG Retirement Points History Statement, prepared on 17 July 2007, only showed he served a period of qualifying service for one award of the ARCAM, during the period June 1988 to June 1992. 

	f.  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 the notification required if he has completed at least 15 and less than 20 years of 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).

	g.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength) prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers.  In pertinent part, it provides that an annual statement of Retired Points will be prepared for all Soldiers regardless of the number of points awarded.  The purpose of the statement is to give a permanent record of the total retirement points a Soldier earns during a retirement year; to tell the Soldier whether he/she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status; and to give the Soldier an opportunity to request correction of errors in the statement.  

5.  In the Board's first consideration of this case, the Board concluded that:

	a.  Evidence of record showed he submitted a request for discharge because of an EPTS medical condition (grand mal epilepsy) in 1964.  His initial USAR enlistment physical examination was not available, but there was evidence available to show he failed to identify this medical condition during his subsequent service in the USAR and the ARNG.  The medical condition for which the ARNG separated him in March 2000 was not known.  However, if it was for his seizure condition it appears he was properly separated for a non-duty related condition. 

	b.  There was no evidence of record to show the applicant completed 17 years of qualifying service in the Army National Guard or in a Reserve component.  While he was in the USAR he had annual opportunities to correct any errors that were reflected on his statements of retirement points.  He would have had those same opportunities while in the ARNG.  The applicant did not take advantage of those opportunities, and he has not now provided evidence to show he completed additional qualifying years.

6.  The documents submitted by the applicant from his Army personnel records were from 1989, 1991, 1996, 1997, 1999, and 2000.  In one letter dated 27 May 




1999, it was stated that the applicant was given authorized absences from unit training assemblies from August 1998 through May 1999.

7.  The medical record provided by the applicant primarily showed his medical problems started causing him trouble in 1995.  In documents obtained from OCLL it was shown that the applicant was being seen for problems with his left shoulder on 4 December 1986, and in 1986 it was noted that while he had improved, he was considered essentially, permanently, partially disabled.  Another document showed he was under a physician's care for recurrent seizures since 1990.  His NGB Form 22 showed he was discharged from the ARNG on 23 October 1992 due to unsatisfactory participation (not attending drills).  

8.  In the processing of this case, the Board's staff printed the applicant’s current Chronological Statement of Retirement Points.  This printout shows that for Retirement Years Ending (RYE) 24 October 1985, 24 October 1986, and 7 July 1987, the applicant was not given any credit for either inactive duty training (primarily unit drills or correspondence courses) or active duty.  He was only credited with membership points (retirement points a Reservist or Guardsman is given for simply being in a troop program unit or the Individual Ready Reserve).  The RYE 7 July 1987 was a partial year followed by a break in service which indicates the applicant was discharged at that time.  

9.  LESs for RYE 24 October 1985 shows his 1-30 November 1984 LES indicating "Retroactive separation from master file, and collection action initiated by [U.S. Army Finance and Accounting Center]."  The next LES for RYE 24 October 1985 is for 1-30 June 1985 which states "May/85 is first record month on computer – assigned [15 May 1985]."  The monthly LESs for the remainder of RYE 24 October 1985 shows no drill performance.  For RYE 24 October 1986, his monthly LESs show no drill performance with the last LES being for the period 1-30 June 1986 which states "Final LES – separation."  There is no LES for RYE 7 July 1987 since the applicant did not have any military status during that time.  His next LES was for the period 1-30 June 1988 which states "June/88 is first record month on computer – assigned [28 June 1988]."  A Master Military Pay Account (MMPA) summary shows that the applicant did not receive any pay in 1998.

10.  Army Regulation 140-1 (Army Reserve Mission, Organization, and Training) prescribes the types of assignments and training for which a Reservist may be awarded retirement points.  These include proper unit assignment or attachment, 

proper pay category, participation in training assemblies which are properly scheduled by the unit, and participation in types of training assemblies that are authorized by Army Regulations.

11.  Army Regulation 600-8-22 (Military Awards), paragraph 4-18, states that between 3 March 1972 and 28 March 1995, the ARCAM was authorized on completion of 4 years’ service with a Reserve Component unit.  The individual must have completed 4 years of qualifying service on or after 3 March 1972 and before 28 March 1995.  A qualifying year of service is one in which a Reserve Soldier earns a minimum of 50 retirement points during his/her retirement year.

12.  In the processing of this case an advisory opinion was obtained from the NGB.  The NGB stated that the applicant had not provided documentation to support his contention that he performed duty during the period from 25 October 1984 through 24 October 1986.  The NGB recommends disapproval of the applicant's request.  The applicant was provided a copy of the advisory opinion and given the opportunity to respond.  

13.  He responded by reiterating his request to be issued a 15 year letter certifying his eligibility for retired pay at age 60, and further requests that he be given 20 additional inactive duty points for RYE 12 June 1998 for completion of the Army Sales and Management Training Course which would give him a total of 53 retirement points for that year; and he requests that he be given 4 months credit for the months he was assigned to different units between 28 June 1992 to 27 June 1993.  He explains that during this time he was undergoing medical treatment for his 1964 epilepsy and performed many extra duty assignments and made up many drills during that period.  The applicant adds that he has been told by the Army Human Resources Command in St. Louis, MO that errors still exist in his retirement point statement and, as such, requests that the Board completely reject the advisory opinion and grant him the relief he is seeking.  

14.  In support of his rebuttal he submits an ARPC Form 249-E which shows that he earned 15 membership points and 18 active duty points for RYE 12 June 1998, for a total of 33 points; he was awarded 15 membership points and 
47 inactive duty points for RYE 27 June 1992; and he was only awarded 
15 membership points for RYE 27 June 1993.  He also submits his Honorable Discharge Certificate, dated 7 March 2000; an LES for the period 1-31 May 1997 which shows he was paid Basic Allowance for Quarters (BAQ) and Basic Allowance for Subsistence (BAS) for that period; a certificate of training for the Sales and Management Training, dated 5 May 1997; an LES for the period


1-30 June 1992 which shows he did not perform any drills that month and had performed a total of 24 unit training assemblies during Fiscal Year 1992 (the applicant annotated this LES with a statement that he had completed an additional 24 drills from the date of this LES to September 1992; and three LESs for July, August, and September 1992 all showing no drill performance.  The applicant later submitted a letter, dated 13 April 2009, in which he again requests that he be given an additional 20 inactive duty points for RYE 12 June 1998 in addition to the 33 points which he has already been awarded and submits a statement from the Social Security Administration (SSA) which was printed on 16 December 1999, and which was filed on 14 July 1998.  This printout is for Training Year 1997 (same as the fiscal year, 1 October 1996 to 30 September 1997).

15.  The Department of Veteran Affairs (VA) documents provided by the applicant show he was determined to be unemployable on 6 June 1997.

DISCUSSION AND CONCLUSIONS:

1.  The primary issue in this case is simply whether the applicant has submitted sufficient evidence and/or made persuasive enough argument to warrant crediting him with sufficient additional retirement points to qualify him for issuance of a 15 year letter.  

2.  More specifically, the applicant believes he should be given retirement points, and qualifying years of service, for 1984, 1985 and 1986.  He believes that his ARNG unit did not submit a record of the inactive duty points he earned during those years and that the absence of inactive duty points in his ARPC Form 249-E for those years, along with the fact that he was awarded the Army Reserve Components Achievement Medal in 1983 and 1987, verifies that he did in fact earn retirement points during this period.

3.  While the applicant was awarded the ARCAM on 30 September 1983 and 30 September 1987, and the award of the ARCAM requires qualifying years of service, the award of the ARCAM cannot be accepted in and of itself as evidence that the applicant earned qualifying years of service.  A mistake was obviously made which resulted in the applicant being erroneously awarded the ARCAM on 30 September 1987.  This is substantiated by the fact that the applicant's LESs confirm he had no drill attendance during RYE 24 October 1985 and 24 October 1986, and had breaks in assignment to ARNG units during both those RYEs.  



The lack of drill attendance and break in ARNG service would appear to be consistent with his physician's finding on 4 December 1986 that while the applicant's physical condition had improved, he was considered essentially, permanently, partially disabled.

4.  As for the absence of inactive or active duty points on his ARPC Form 249-E, this simply denotes that no documents were submitted to the office which updates retirement points which would show that the applicant earned any retirement points during that period.  By itself, this does not show any error or injustice in the applicant's records.  To the contrary, since Reservists and Guardsmen are given an annual retirement point’s statement, the absence of evidence that the applicant attempted to have retirement points he earned credited to him contemporaneous with the issuance of his retirement point statements is prima facie evidence that those statements accurately depicted his service for the time covered by those statements.

5.  While there are no documents which would show that the applicant earned any retirement points or qualifying years of service which he was not credited with, due to the extraordinary authority vested in the Board, the applicant's argument was reviewed to determine whether it was of the weight to grant his request given the lack of substantiating documents.  

6.  In this regard, the applicant was discharged due to medical disqualification (not duty related) due to grand mal epilepsy on 18 March 1964.  There is no evidence that he revealed his grand mal epilepsy during his later enlistments.  The applicant was medically discharged from the ARNG in March 2000, presumably due to medical disqualification.  (As previously stated, the applicant's military records could not be located and the information contained in these proceedings was taken primarily from documents provided by the applicant.  While the quantity of documents provided by the applicant would suggest he has his complete military records, he has not submitted his complete military records for the Board to review.)

7.  Given this history, the possibility that the applicant stopped attending drills with his troop program unit in 1984 due to him having grand mal epilepsy is fairly great.  This would account for the lack of inactive or active duty points being entered in his ARPC Form 249-E for the RYES 24 October 1985, 24 October 1986, and 7 July 1987.  It would also explain why he was separated prior to completing an entire year on 7 July 1987.  The possibility of a Guardsman being 



given authorized absences from unit training assemblies is verified by the applicant being given an authorized absence from August 1998 through May 1999.  The fact that the applicant's medical condition appears to be fluid, improving and then deteriorating throughout the years, makes it hard to establish this conclusively without the applicant's complete military records.

8.  In summary, the documents submitted by the applicant do not show that he earned retirement points or qualifying years of service for the RYE 24 October 1985, 24 October 1986, and 7 July 1987, and the applicant's medical history lends weight to the presumption that he did not attend unit training assemblies or perform any active duty during the time in question.  This presumption is verified by the lack of drill performance as documented on his LESs for the period and the breaks in ARNG service he had from 30 November 1984 to 24 October 1985 and 30 June 1986 to 28 June 1988.  It is inconceivable to believe that the applicant would not have submitted pay inquires to rectify his pay if he was not paid during these periods.

9.  As for the new requests made and contentions raised by the applicant in his rebuttal to the advisory opinion, the applicant has requested he be given 20 additional inactive duty points for RYE 12 June 1998 for completion of Army Sales and Management Training Course, Inc, for which he was given a certificate of training dated 5 May 1997.  Initially, this training was accomplished in May 1997.  As such, it would be credited to the applicant in RYE 12 June 1997, not RYE 12 June 1998.  In addition, the applicant was awarded 116 active duty points for RYE 12 June 1997, and the LES he submitted shows he was paid BAQ and BAS.  The BAQ and BAS allowances are only paid to Soldiers on active duty and are not paid to Soldiers performing inactive duty.  As such, this argument is not accepted.  As for the earnings reflected on the applicant's SSA printout which was filed in 1998, since the printout was for TY 1997, it would not reflect any money earned in 1998.  Also noted is the fact that the applicant was determined to be unemployable by the VA on 6 June 1997.

10.  The applicant's other contention in his rebuttal, that he be given 4 months credit for the months he was assigned to different units between 28 June 1992 to 27 June 1993, is not supported by any evidence or viable argument.  While the LES shows that he was awarded 24 inactive duty points for FY 1992, he was awarded 47 inactive duty points for RYE 27 June 1992, which was, of course, 




part of FY 1992.  In addition, the applicant was discharged from the ARNG on 23 October 1992 due to unsatisfactory participation, which means he was not attending drills with his unit.

11.  In view of the foregoing, there is no basis for granting 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 to amend the decision of the ABCMR set forth in Docket Number AR20070015895, dated 11 March 2008.



      _______ _  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)                                         AR20090002463



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ABCMR Record of Proceedings (cont)                                         AR20090002463



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