IN THE CASE OF:	  

		BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090004485 


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 his military records to show that he qualified for an early non-regular retirement due to physical disability.

2.  The applicant was medically evaluated on 20 November 1993 and found medically unfit for retention.  Then he was discharged without notification and was unable to appeal at the time because he was undergoing cancer treatment.  He had over 17 years of service at the time.  While attempting to receive Department of Veterans Affairs (VA) benefits and reviewing his records, the applicant discovered he had not been given an opportunity to receive a waiver or try to appeal the separation process due to his cancer treatments at the time.  He feels that he was unjustly discharged from the military service before he could request a waiver or appeal the process.     

3.  The applicant provides, in support of his application, copies of his discharge orders; memorandum, Kentucky Army National Guard, dated 22 November 1993; Letter, VA Medical Center, dated 20 July 1994; a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) with correction; DD Forms 214 (Certificates of Release or Discharge from Active Duty) ending on 5 June 1991 and 21 September 1963; NGB Form 55 (Honorable Discharge Certificate); and his Army National Guard Retirement Points History Statement, dated          19 February 2009. 




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.  On 22 September 1961, the applicant was inducted into the Army of the United States for 2 years.  He was 23 years, 8 months and 20 days of age at the time, having been born on 3 July 1938.  He was released from active duty on 
21 September 1963 and transferred to the United States Army Reserve Control Group (Annual Training) with the XX United States Army Corps.

3.  On 26 February 1979, the applicant enlisted in the Kentucky Army National Guard.  He was promoted to staff sergeant, pay grade E-6, with a date of rank of 14 May 1990.

4.  On 9 December 1990, the applicant was ordered to active duty as a member of the Army National Guard in support of Operation Desert Shield/Storm.  He served approximately 3 months overseas and was transferred back to the Kentucky Army National Guard on 5 June 1991.

5.  On 20 November 1993, the applicant underwent a medical examination and was found medically unfit for retention.  A memorandum from the Director of Personnel, Kentucky Army National Guard directed that the applicant be notified of the findings and afforded the opportunity to request a waiver for retention.  

6.  The applicant's NGB Form 22, effective 1 April 1994, shows that he was discharged without personal notice due to medical unfitness for retention.  He had completed 15 years, 1 month and 6 days of active service during this period of service.  He also had completed 2 years of prior active duty service and he had a total of 21 years and 15 days of service for pay purposes.



7.  On 19 February 2009, the Kentucky Army National Guard prepared an Army National Guard Retirement Points History Statement at the applicant's request.  This statement shows that as of 1 April 1994, he had completed 17 years, 
1 month and 6 days of qualifying service for retired pay.  

8.  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.  

9.  Public Law 103-337, dated 5 October 1994, established eligibility for early reserve retirement for Soldiers involuntarily separated from the Selected Reserve due to physical disability during the period 5 October 1994 through 30 September 1999 (later extended through 30 September 2001).  Eligibility is based on a minimum of 15 years of qualifying service toward Reserve Component retirement.  Title 10, U. S. Code, section 12731a(a)(1) was amended to extend the Early Reserve Retirement Eligibility for Disabled Members to the period beginning on  23 October 1992 and ending on 1 October 1999 to Soldiers who attained 15 years of retirement eligibility as of 1 October 1991.

10.  Public Law 92-425, the Survivor Benefit Plan (SBP), enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  An SBP election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should not have been discharged on 1 April 1994; but rather, transferred to the Retired Reserve and provided a letter of notification informing him of his eligibility to receive retired pay at age 60.

2.  The applicant's commander took action to separate him from the Army National Guard and the Reserve of the Army due to medical unfitness.

3.  The evidence clearly shows the applicant had completed more than 17 years of qualifying service.  He was properly discharged on 1 April 1994, as the law authorized early Reserve retirement as a result of being medically unfit for retention in the Selected Reserve was not passed until October 1994.  However, the law was later amended to extend the period of eligibility retroactive to          23 October 1992.  Therefore, it would be equitable at this time to show he was eligible for an early Reserve retirement.

4.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.

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 he so applied prior to turning age 60, and that his application was approved and processed in a timely manner; and

     b.  paying to the applicant all due retired pay retroactive to the date he 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)                                         AR20090004485



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004485



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1