IN THE CASE OF:	  

		BOARD DATE:	  5 November 2009

		DOCKET NUMBER:  AR20090009301 


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, correction of his military records to show that his request for a medical waiver was disapproved and that he had remained in the Retired Reserve, thereby being eligible for retirement benefits.

2.  The applicant states that he was granted a waiver of his medical condition as a favor and not based on a medical examination.  He further states that he is being denied retirement benefits because of this improperly-approved waiver.

3.  The applicant provides no additional documentation in support of his application.

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 was born on 29 January 1946 and he attained the age of 60 on 29 January 2006.

3.  The applicant's record confirms he served on active duty in the Regular Army (RA) from 16 September 1964 through 28 August 1968, at which time he was transferred to the U.S. Army Reserve (USAR).  He served in the USAR through 28 August 1970, at which time he had a break in service.  He reentered the USAR on 10 August 1971 and he served until 9 June 1972, at which time he had another break in service.  On 23 June 1976, he entered the Army National Guard (ARNG), where he served until 22 June 1978.  He reentered the USAR on
23 June 1978 and he served in this status until being transferred to the Retired Reserve.

4.  Records show the applicant was diagnosed in 1989 with having cardiac abnormalities that were permanent and controlled by medication.  He could not participate in physical training and he was to avoid heavy lifting.

5.  Orders 4-12, First United States Army, Fort George G. Meade, MD, dated 
8 January 1990, released the applicant from the 98th Division (Training) and assigned him to the USAR (Retired) effective 8 January 1990 due to medical disqualification for retention.

6.  A Memorandum for Commander, U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, MO, dated 25 April 1990, signed by the Deputy Chief of Staff for Personnel, First United States Army, Fort George G. Meade, states that on 24 October 1989, the 98th Division Staff Surgeon found the applicant to be medically disqualified for retention.  The applicant submitted a request for a waiver of this disqualification on 14 November 1989.  Every commander in the applicant's chain of command recommended disapproval of the request.  The ARPERCEN Physical Review Board concurred with those recommendations and disapproved the applicant's request for a waiver on 9 December 1989.

7.  The memorandum further states that on 5 April 1990, ARPERCEN granted the applicant a medical waiver so that he could be assigned to a troop program unit.

8.  ARPERCEN Order C-05-800893, dated 17 May 1990, relieved the applicant from the USAR Control Group (Retired) and assigned him to the USAR Control Group (Reinforcement), effective 10 May 1990.

9.  A Memorandum for Record, dated 27 January 2006, concerning the status of the applicant, states that at the time of the applicant's departure from the 98th Division (Training) in 1990, no unit had a position available that was compatible with the applicant's grade and military occupational specialty.

10.  A DARP Form 249-E-2 (Chronological Statement of Retirement Points) on file confirms the applicant completed a total of 15 years, 11 months, and 13 days of qualifying service for retirement, and that he served the last 13 years of his qualifying years in a Reserve Component [ARNG or USAR status] as of retirement year ending 23 June 1995.

11.  On 12 December 1995, ARPERCEN Orders Number D-12-507876, directed the applicant's honorable discharge from the USAR.

12.  On 8 March 2005, the applicant submitted a DD Form 108 (Application for Retired Pay Benefits) and a DD Form 2656 (Data for Payment of Retired Personnel).   On 8 October 2005, the Chief, Transition and Separations Branch, U.S. Army Human Resources Command (USAHRC), St. Louis, informed the applicant that he had completed 15 years, 11 months, and 13 days of qualifying service; but, he needed a full 20 years of qualifying service to receive retired pay at 60 years of age.

13.  Title 10, U.S. Code, section 12731 provides the legal authority and age and service requirements for non-regular retirement.  It states, in pertinent part, that a member is eligible to receive retired pay at age 60 if they have completed
20 qualifying years of service for retirement, of which, in 1995, the last six were performed in a Reserve Component.

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

15.  Title 10, U.S. Code existed as a force reduction/transition initiative in section 12731a(c)(3) for the period beginning 23 October 1992 and ending                     30 September 2001 for those members who completed at least 15 years of service as of 1 October 1991.  The intent of the new subsection was to make the authority permanent.  It was retroactive only to 23 October 1992.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his request for a waiver of his medical condition was improperly approved and should be voided in order to qualify for retirement benefits.

2.  The evidence of record confirms the applicant completed a total of 15 years, 11 months, and 13 days of qualifying service for non-regular retirement.  It further shows that he was medically disqualified for retention and transferred to the Retired Reserve on 8 January 1990.

3.  The applicant requested a waiver of his medical disqualification so that he could complete 20 years of qualifying service for a non-regular retirement.  His entire chain of command recommended disapproval.  The Physical Review Board concurred and disapproved the request and he was placed in the Retired Reserve.  However, he was subsequently granted a medical waiver, which resulted in his transfer from the Retired Reserve to the IRR on 10 May 1990. There is no evidence showing that his medical condition had improved, or that this waiver was based on any medical examination at the time.

4.  On 12 December 1995, the applicant was honorably discharged from the USAR under the authority of Army Regulation 135-178 (Army National Guard and Army Reserve - Separation of Enlisted Personnel.

5.  Considering the entire record, it is evident that the applicant's sole desire was to complete the service requirements for a 20-year non-regular retirement.  However, his medical condition and a lack of qualifying positions in a unit prevented his goal.

6.  The law granting an early retirement based on completion of 15 but less than 20 years of qualifying service is only retroactive to 23 October 1992.  Because the applicant was separated from the Selected Reserve prior to that date, he is not eligible for an early retirement.  Consequently, voiding the waiver of his medical condition will have no affect on his eligibility to receive retirement benefits.

7.  Unfortunately, in view of the above, the applicant's request should be denied.






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)                                         AR20090009301



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ABCMR Record of Proceedings (cont)                                         AR20090009301



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