IN THE CASE OF:	

		BOARD DATE:	9 July 2009  

		DOCKET NUMBER:  AR20090002681 


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 correction of her military records to show that she qualified for an early non-regular retirement due to physical disability.

2.  The applicant states that her unit commander failed to sign her request for early retirement resulting in her not receiving a Notification of Eligibility for Retired Pay at Age 60 (15-Year Letter).  She further states that her unit had informed her that she was retired and that she was to request retirement pay 
6 months prior to her 60th birthday.  On 9 January 2009, she was told that a 
15-Year Letter could not be issued due to an administrative error made by her unit.

3.  The applicant provides, in support of her application, copies of a letter from the Transition and Separations Branch, dated 8 September 2008, with enclosures; Orders 293-1, 9th Regional Support Command, dated 19 October 2000; DA Form 4187 (Personnel Action), with enclosure, requesting early retirement; a memorandum from Tripler Army Medical Center, dated 
11 September 2000, informing the applicant of separation action; Chronological Statement of Retirement Points, dated 22 May 2008; DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 May 1991; Medical Board Proceedings (MEB) dated 29 June 2000, with enclosures; a memorandum, subject: Early Reserve Retirement Eligibility for Disabled Members of the Selected Reserve, dated 21 May 1998, with enclosure; letter from the State of Hawaii, dated 19 May 1999; and extracts from her service medical records. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 16 January 1949.  At the time of her application, she was a member of the Retired Reserve, in the rank of major, pay grade O-4.  She had been commissioned in 1983 as a member of the United States Army Reserve and served in an active status until her transfer to the Retired Reserve effective 20 October 2000. 

2.  On or about 29 June 2000, the applicant underwent an MEB.  The MEB found that the applicant suffered from the following:

	a.  bilateral chrondromalacia patellae, moderate to severe;

	b.  complex partial seizure disorder, status post resection of meningioma;

	c.  bilateral pes anserine bursitis;

	d.  migraine headaches; and
	
	e.  right shoulder impingement syndrome, mild.

3.  The MEB recommended referral to a Physical Evaluation Board (PEB).  The applicant indicated that she did not want to continue on active duty.  

4.  On 5 July 2000, the approving authority approved the MEB findings and recommendation.

5.  On 18 August 2000, the applicant agreed with the MEB findings and recommendation.

6.  On 9 September 2000, the applicant completed a DA Form 4187, requesting early retirement eligibility due to physical disability.  She stated in this request that according to her Summary of Retirement Points and counseling by her unit, she had 15 but less than 20 years of qualifying service for non-regular retired pay.  She understood that she was subject to involuntary separation from the Selected Reserve solely because of her medical unfitness.  She elected to be transferred to the Retired Reserve.  There is no indication that this DA Form 4187 was acted upon by the applicant's unit commander.

7.  In a memorandum dated 11 September 2000, the applicant's commander initiated action to separate her from the United States Army Reserve Troop Program Unit for being medically unfit for retention.  The commander provided a summary of her retirement points that indicated she had 15 qualifying years of service and was eligible to elect early qualification for retired pay at age 60 with concurrent transfer to the Retired Reserve.  The commander also informed the applicant that if she did not qualify for early retirement, she could elect to be evaluated by a PEB. 

8.  Orders 293-1, 9th Regional Support Command, dated 19 October 2000, released the applicant from Detachment 2, 1984th United States Army Hospital, Honolulu, Hawaii, due to medical disqualification for retention and assigned her to the Retired Reserve effective 19 October 2000.  These orders further provided that the applicant's Selected Reserve Transition Program Type was: Early Qualification for Retired Pay at Age 60 (Physical Disability), Code XM.

9.  The applicant attained 60 years of age on 16 January 2009.

10.  APRC 249-E (Chronological Statement of Retirement Points), dated 22 May 2008, shows that the applicant was transferred to the Retired Reserve effective 20 October 2000 and had completed 16 years of qualifying service.

11.  The applicant's DD Form 108 (Application for Retired Pay Benefits) is date stamped 4 August 2008.  Attached to this application is a copy of a DD Form 2656 (Data for Payment of Retired Personnel) wherein she indicated that she was married and had elected not to participate in SBP.  Her spouse concurred with this election.  All signatures are dated 25 July 2008.

12.  On 8 September 2008, the Chief, Transition and Separations Branch, United States Army Human Resources Command, St. Louis, Missouri, informed the applicant by letter, that based on her APRC 249-E, she only had 16 years of qualifying service and was not qualified to receive retired pay.  It advised her that she could apply to this Board for a review of her case. 

13.  Sections 12731 through 12740 of Title 10, U.S. 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.  

14.  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/she has completed at least 15 and less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that her military records should be corrected to show she is entitled to receive retired pay at age 60 based on 16 years of service and her subsequent unfitness due to physical disability.

2.  The applicant's commander took action to separate her from the Selected Reserve due to medical unfitness.

3.  Subsequent orders were published directing the transfer of the applicant from the Selected Reserve to the Retired Reserve effective 20 October 2000 due to being medically unqualified for retention.  Her APRC 249-E shows that she had completed 16 qualifying years.     

4.  The applicant was eligible for and should have received a 15-year letter, showing entitlement to retired pay at age 60.  

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:

     a.  showing the applicant was eligible to apply for early qualification for retired pay at age 60, that she so applied on 4 August 2008, and that her application was approved and appropriately processed in a timely manner;

     b.  showing the applicant’s 25 July 2008 DD Form 2656 was accepted and processed; and

     c.  paying to the applicant all due retired pay retroactive to the date she turned age 60.




      _______ _   _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)                                         AR20090002681





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ABCMR Record of Proceedings (cont)                                         AR20090002681



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