IN THE CASE OF:	

		BOARD DATE:	6 October 2009 

		DOCKET NUMBER:  AR20090005375 


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 that his U.S. Army Reserve (USAR) discharge orders, dated 6 May 1992, be revoked and that he be transferred to the Retired Reserve under the Transition Assistance Management Program (TAMP) Type-XM [Properly referred to as the Selected Reserve Transition Program Type-XM].

2.  The applicant states that he had surgery on his back and became disqualified for worldwide service.  As a result, he consulted with his commander and was told that a discharge from the service was "the best that he could do for me."  The applicant states that his unit was downsizing and would possibly be replaced by a unit out of Charlotte, North Carolina.  The applicant contends that the commander instructed him to request a discharge, which he did.

3.  The applicant continues that now he knows that since he had a permanent medical disqualification that prevented him from performing his duties, he should have been transferred to the Retired Reserve.  The applicant states that he was not looking to be discharged from the Reserve, but he could not perform his duties.  He contends that since he had completed 18 years of Reserve service and was medically disqualified from service, he qualified for immediate transfer to the Retired Reserve.

4.  The applicant further states that because neither discharge nor the Retired Reserve status would have required him to complete drills, serve on active duty, or report for individual training days or other duties, it would have been foolish for him to ask for a discharge rather than retirement.  He states that had he been properly advised of his options by his commander, he would have elected medical transfer to the Retired Reserve.  The applicant concludes that he believes he was eligible to be placed in the Retired Reserve under the Selected Reserve Transition Program Type-XM.

5.  The applicant provides a self-authored statement, a letter, two memoranda, USAR discharge orders, a DD Form 108 (Application for Retired Pay Benefits), a DD Form 2656 (Data for Payment of Retired Personnel), and a USAR Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points) as documentary evidence in support of his application. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no statement and provides no evidence on behalf of the applicant.

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 sub-stantive 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 that he served on active duty in the U.S. Marine Corps (USMC) which included combat service in Vietnam and inactive service in the USMC Reserve.  The applicant enlisted in the USAR on 31 August 1978.

3.  The applicant's record contains a self-authored letter in which the applicant stated that he sustained an on-the-job injury at his civilian workplace on 25 June 1990 which rendered him disabled.

4.  The applicant's record contains, and he also provides, a Raleigh Neurosurgical Clinic, Inc., Raleigh, North Carolina, letter, dated 5 September 1991.  In this letter, a doctor states that the applicant had multiple cervical and lumbar back operations to include a fusion of the lumbar spine and continued to have problems with low back and leg pain.  The doctor opined that the applicant was completely unable to perform any of his military activities at the time and recommended that he be medically retired.

5.  The applicant's record contains, and he also provides, a Headquarters, 3286th USAR Forces (USARF) School, Garner, North Carolina, memorandum, dated 30 September 1991, subject:  Discharge Due to Medical Disqualification for Retention.  This memorandum shows the applicant, having been found to have a medical condition which rendered him medically disqualified for further retention in the USAR, was afforded an opportunity to choose between three options that were available to him under the provisions of Army Regulation 
135-178 (Enlisted Administrative Separations) at the time:  to be discharged from the USAR due to the medical condition which rendered him disqualified for retention, to be transferred to the Retired Reserve, or to request consideration for waiver of his disqualification.  The applicant elected to be discharged from the USAR.

6.  The applicant's record contains, and he also provides, USAR Command, Fort McPherson, Georgia, Orders 145-21, dated 6 May 1992, which show he was honorably discharged from the USAR under the provisions of Army Regulation 135-178, effective 6 May 1992.

7.  The applicant provides a Headquarters, 3286th USARF School, memorandum, dated 15 February 1995, subject:  Service of [applicant's rank and name].  In this memorandum, the former secretary and assistant commandant of the school stated that the applicant arrived at the school in 1985 and served honorably until he was transferred to the USAR Control Group in 1992 after sustaining a disabling injury in 1991.  The former secretary and assistant commandant also provided numerous accolades about the applicant's motivation and competence.

8.  In 1995, the applicant submitted a request to the ABCMR asking that his administrative discharge be revoked and that he be medically retired from the USAR due to permanent physical disability.  His request was considered and denied by the Board under Docket Number AC95-08964 on 2 April 1997.

9.  On 25 October 2008, the applicant submitted a request to the ABCMR asking that his administrative discharge be revoked and that he be issued a 15-year letter.  His request was considered and denied by the Board under Docket Number AR20080016616 on 17 March 2009.

10.  The applicant provides a DD Form 108, dated 5 January 2009; a DD Form 2656, dated 6 January 2009; and an ARPC Form 249-E that he rendered in order to request retired pay benefits.  There is no indication that he actually submitted these documents to the appropriate agency for processing.

11.  The applicant’s ARPC Form 249-E, dated 14 January 2009, shows he had 18 years of qualifying service for retirement.  This form also shows the applicant did not serve on active duty for a period of 30 days or more after 30 August 1983 and he did not accrue any active duty points after 30 August 1991.

12.  Office of the Chief, Army Reserve, Washington, DC, Policy Guidance Memorandum, dated 1 July 1996, subject:  Early Reserve Retirement Eligibility for Disabled Members of the Selected Reserve, provided that members of the Selected Reserve who were subject to involuntary separation from the Selected Reserve solely because they were unfit due to a medical disability, could elect early qualification for retired pay at age 60 provided they transferred to the Retired Reserve and met certain eligibility criteria.  If approved, the separation code to be used in assigning Soldiers to the Retired Reserve for the Selected Reserve Transition Program was "Early Qualification for Retired Pay at Age 60 (Physical Disability), Code XM."  Qualification dates for eligibility began on 5 October 1994 and continued through 30 September 1999 [subsequently extended until 1 October 2001].  Eligibility for this benefit was contingent on the following:

	a.  The Soldier was not eligible for an immediate annuity under any purely military retirement plan.

	b.  As of 1 October 1991, or after that date and before 1 October 1999, the member had completed at least 15 and less than 20 years of service computed under section 12732 of Title 10, U.S. Code.

	c.  The Soldier was in the Selected Reserve and had been determined unfit for continued service in the Selected Reserve because of a physical disability as defined in chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), Army Regulation 40-501 (Standards of Medical Fitness).

	d.  The disability was not the result of the Soldier's intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention as established by the Secretary of the Army.  The benefit was not authorized if the disability was incurred or aggravated during a period of unauthorized absence.

	e.  The Soldier was not qualified for retirement under this policy if the member qualified for disability retirement under chapter 61 (Retirement or Separation for Physical Disability) of Title 10, U.S. Code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his USAR discharge orders, dated 6 May 1992, should be revoked and that he be transferred to the Retired Reserve under the Selected Reserve Transition Program Type-XM was carefully considered.

2.  Evidence of record shows the applicant elected to be discharged from the USAR on 30 September 1991.  In the absence of evidence to the contrary, it must be presumed that his request was properly processed.

3.  Evidence shows the Selected Reserve Transition Program Type-XM was not implemented until 3 years after the applicant was voluntarily discharged.  The dates for eligibility began on 5 October 1994 and there were no provisions for retroactive consideration.  Therefore, the applicant was not eligible for participation in this program.

4.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement and there is no basis for granting his 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 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)                                         AR20090005375



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ABCMR Record of Proceedings (cont)                                         AR20090005375



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