BOARD DATE:	  22 October 2009

		DOCKET NUMBER:  AR20090009436 


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 reason for separation from the U.S. Army Reserve (USAR) be changed from medically disqualified.

2.  The applicant states his medical discharge was unjust.  He states that he wants to reenter the Reserve; however, his status is reflected as medically disqualified.  He states that he had a career counselor assisting him in reentering the Reserve and he was told to "see a sergeant to get his status changed and the bar lifted."  He states that he would like to appear before a "sergeant board" so he can reenter the Reserve and complete his 20 years of service.

3.  The applicant provides a self-authored statement.

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 24 March 1980, the applicant enlisted in the Regular Army (RA) in Philadelphia, Pennsylvania, for 4 years in the pay grade of E-1.  He successfully completed his training as a cannon crewman.

3.  Due to an extension of service for the convenience of the government, the applicant was honorably released from active duty on 22 November 1984 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 4, at the expiration of his term of service and he was transferred to the USAR Control Group (Reinforcement) to complete his Reserve obligation.  He had completed 4 years, 7 months, and 29 days of net active service this period.

4.  The applicant enlisted in the Pennsylvania Army National Guard (PAARNG) on 7 February 1985.  After completing 5 years of net service this period, the applicant was honorably discharged from the PAARNG on 6 February 1990 due to the expiration of his service obligation.

5.  On 23 March 1992, the applicant again enlisted in the PAARNG.  After completing 5 years, 2 months, and 13 days of net service this period, the applicant was honorably discharged from the PAARNG on 5 June 1997 to enlist in the USAR.

6.  On 6 June 1997, the applicant enlisted in the USAR for 3 years.  After completing 3 years and 1 day of net service this period, and after being held beyond his normal expiration term of service through no fault of his own, he was honorably discharged on 7 June 2000.

7.  The available records show that the applicant again enlisted in the USAR for 8 years on 26 January 2001.

8.  The facts and circumstances surrounding his assignment to the Retired Reserve are not on file.  However, his records show that on 30 April 2004 Orders 041-121-00012 were published assigning the applicant to the Retired Reserve effective 1 May 2004 due to being medically released from his troop program unit, not as a result of his own misconduct.  He completed 17 years, 3 months, and 14 days of qualifying service for retirement.

9.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), paragraph 6-1 (Eligibility), states that Reserve members are eligible for transfer to the Retired Reserve if they are medically disqualified, not as a result of their own misconduct, for retention in an active status (Ready Reserve) or entry on active duty, regardless of the total years of service completed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his reason for separation from the USAR should be changed from medically disqualified.

2.  His contentions have been noted.  However, he has not provided sufficient evidence and there is insufficient evidence contained in his official records to show that his medical disqualification and subsequent assignment to the Retired Reserve was in error or unjust.

3.  As previously stated, the facts and circumstances surrounding his assignment to the Retired Reserve are not on file.  However, the applicant's records show that he was medically disqualified, not as a result of his own misconduct, and the available evidence of record indicates that he was processed for separation through medical channels prior to his assignment to Retired Reserve in accordance with the applicable regulation.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

4.  In regard to the applicant's request to "see the sergeant board," there is no such board as it pertains to the request to have his reason for separation changed.  If the applicant is seeking a personal appearance before this Board, personal appearances before the ABCMR are by invitation of the Board only and are not automatically scheduled at the applicant's or his/her counsel's request.  Personal appearances are scheduled only when the Board determines a personal appearance hearing is necessary.  In this case, there appears to be no basis for granting a personal appearance.

5.  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 has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20090009436



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ABCMR Record of Proceedings (cont)                                         AR20090009436



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