IN THE CASE OF:	  

		BOARD DATE:	    10 December 2009

		DOCKET NUMBER:  AR20090004202 


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, that his record be corrected to show he has 20 qualifying years for nonregular retirement.

2.  The applicant states, in effect, that he has the time necessary to qualify for a 20-year retirement; however, he was never provided proper information to apply.

3.  The applicant provides the following documents in support of his application:  National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service); Texas Military Forces memorandum for record, dated 12 February 2009; Army National Guard (ARNG) Retirement Points History Statement; ARNG Retirement Points Statement Soldier Detail Report; DD Forms 214; and implementing instructions for ARNG disability retirement.

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's record shows he was inducted into the Army of the United States and served on active duty for 1 year, 9 months, and 9 days from 12 March 1971 through 20 December 1972.  It also shows he enlisted in the Regular Army on 16 August 1974.  During his tenure on active duty, he earned the National Defense Service Medal, Army Commendation Medal, Army Good Conduct Medal (5th Award), Noncommissioned Officer Professional Development Ribbon with Numeral 1 [sic], Army Service Ribbon, Overseas Service Ribbon with Numeral 1 [sic], and Expert Marksmanship Qualification Badge with Rifle Bar.

3.  The applicant's record further shows that on 3 August 1988 he received notification of his involuntary separation as a result of his DA-imposed bar to reenlistment under the Qualitative Management Program and that on 2 December 1988 he was honorably discharged in the rank of sergeant under the provisions of paragraph 16-8, Army Regulation 635-200 (Personnel Separations), by reason of reduction in authorized strength - qualitative early transition program.  The DD Form 214 he was issued at that time shows he completed a total of 16 years and 26 days of creditable active military service and 1 year, 7 months, and 26 days of prior inactive military service.

4.  On 14 March 1997, the applicant enlisted in the Texas ARNG (TXARNG) for a period of 6 years.  He served in that status for 1 year and 4 months until 31 July 1998, at which time he was honorably discharged from the TXARNG by reason of medical unfitness.

5.  The applicant's record contains an ARNG Retirement Points History Statement, dated 16 November 2005, which indicates he completed a total of 18 years, 1 month, and 18 days of creditable military service for retired pay.  It also shows that only the last 1 year, 4 months, and 17 days of this service was completed in a Reserve Component (RC).

6.  In connection with the processing of this case, an advisory opinion was requested of and received from the Chief, Personnel Division, NGB.  This official stated that the applicant has a total of 19 years and 21 days of total service for pay and 16 years and 26 days of prior active Federal service.  Therefore, he recommended the applicant's request be approved based on the guidelines under Title 10, U.S. Code, section 12731b, "Special Rule for members with physical disabilities not incurred in the line of duty."

7.  On 5 October 2009, a copy of this advisory opinion was forwarded to the applicant in order for him to have the opportunity to rebut its contents.  To date, no response has been received from the applicant.

8.  The applicant provides a memorandum for record, dated 12 February 2009, which was issued by the Support Services officer in charge of the TXARNG which indicates that the applicant was found unfit for retention on 31 July 1998.  It also indicated the applicant had completed a total of 18 years, 1 month, and 8 days of qualifying service for nonregular retirement, of which 16 years and 26 days were active duty service.  This official further stated that the applicant's eligibility for an early retirement under Temporary Early Retirement Authority (TERA) provided by law at the time showed he was not eligible for a 15-year early retirement because he had not completed the last 6 qualifying years for retirement in an RC as was required by law.  This official did indicate the ARNG had no objection to this Board providing relief by adjusting active duty time to RC time for the purpose of retirement eligibility.

9.  Title 10, U.S. Code, section 12731 (Age and Service Requirements), provides the legal authority for age and service requirements for nonregular retirement.  It states, in pertinent part, that a member is eligible to receive retired pay at age 60 if he or she has completed 20 qualifying years of service for retirement.  In the case of a person who completed the 20 years of qualifying service requirement before the end of the 180-day period beginning on the date of the enactment of the National Defense Authorization Act for Fiscal Year 2005, he or she must have performed the last 6 years of qualifying service while a member of an RC, but not while a member of a Regular Component, the Fleet Reserve, or the Fleet Marine Corps Reserve.

10.  Title 10, U.S. Code, section 12731a, provided temporary special retirement qualification authority during the period 23 October 1992 through 31 December 2001.  It states, in pertinent part, that for the purpose of section 12731, during the period prescribed, the Secretary concerned could treat a member of the Selected Reserve of an RC as having met the service requirements and provide the member with the notification required if the member had completed at least 15 but less than 20 years of service.

11.  Title 10, U.S. Code, section 12731b, provides a special rule for members with physical disabilities not incurred in the line of duty.  It states, in pertinent part, that in the case of a member of the Selected Reserve of an RC who no longer meets the qualifications for membership in the Selected Reserve solely because of unfitness because of physical disability, the Secretary concerned may, for the purpose of section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years but less than 20 years of qualifying service for retirement purposes.  This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show he completed the necessary years to qualify for nonregular retired pay at age 60 was carefully considered.  However, there is an insufficient evidentiary basis to support granting the requested relief.

2.  Under the TERA provided by law at the time of the applicant's discharge, a member must have completed at least 15 years of qualifying service, of which the last 6 years must have been performed in an RC, in order to qualify for early retirement eligibility.  The law did not provide for transferring active duty service credit to RC service credit and provided no exception of the RC service rule for members being discharged by reason of medical unfitness.

3.  In this case, the Retirement Points Accounting System on file confirms that although the applicant completed 18 years, 1 month, and 8 days of qualifying service for nonregular retirement purposes as of his discharge date of 31 July 1998, only his last 1 year, 4 months and 17 days were performed in an RC.  Further, it appears the applicant was informed of his non-eligibility for early retirement under TERA provisions of the law in the early Reserve retirement eligibility for disabled members of the ARNG implementing instructions he provided with his application.

4.  In view of the facts of this case, given the applicant did not complete the last 6 years of his 15 years of qualifying service in an RC, he is not eligible for nonregular retirement under the TERA provisions of the law that existed at the time, and absent any retroactive provisions of the current disability retirement rules of the law, there is an insufficient evidentiary basis and it would not be appropriate or serve the interest of other RC personnel who faced similar circumstances to grant the requested relief in this case.

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 this 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)                                         AR20090004202



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ABCMR Record of Proceedings (cont)                                         AR20090004202



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