IN THE CASE OF:	  

		BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090009694 


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 she be issued a Notification for Eligibility for Non-Regular Retired Pay at Age 60 (15-Year Letter).  

2.  The applicant states that she was discharged from the U.S. Army Reserve (USAR) after being found medically unfit due to a diagnosis of Addison's disease and was transferred to the Retired Reserve.  She was processed out of the USAR but never received her 15-year letter.  She adds that she has served her country for over 15 years and never had a problem with her records until she switched from the U.S. Navy (USN) to the U.S. Army.  She also adds that without a 15-year letter she is unable to obtain a retirement Identification (ID) card and will not be able to receive retired pay at age 60.  She has attempted to resolve the issue through her unit and the U.S. Army Human Resources Command (USAHRC) but kept getting sent around in circles.  

3.  The applicant provides a copy of Orders 05-225-00095, issued by the 81st Regional Readiness Command (RRC), on 13 August 2005; a copy of her ARPC 249-E (Chronological Statement of Retirement Points), dated 31 May 2005; and copies of her USN DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 13 December 1999 and 31 March 2002, in support of her request. 

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.  Having had prior service in the USN and the U.S. Navy Reserve (USNR), the applicant's records show she enlisted in the USAR in the rank/grade of staff sergeant/E-6 for a period of 3 years on 26 July 2002.  She held military occupational specialty (MOS) 92Y (Supply Specialist) and was assigned to Company E, 3rd Battalion, 414th Regiment, 104th Division, Fort Lewis, WA.  

3.  On 2 November 2003, the applicant was issued a permanent physical profile for Addison's disease (Adrenal Insufficiency with Autoimmune Origin).  The profiling officer indicated that the applicant did not meet retention standards of paragraph 3-11b of Army Regulation 40-501 (Standards of Physical Fitness). 

4.  On 23 October 2004, the applicant was reassigned from her current Troop Program Unit (TPU) to a TPU within the 3rd Battalion, 323rd Infantry, 108th Division, Durham, NC.  

5.  On 2 June 2005, by memorandum, the 81st RRC Command Surgeon stated that a review of the applicant’s records indicated the applicant did not meet retention requirements of paragraph 3-11b of Army Regulation 40-501 by reason of Adrenal Dysfunction.  He added that Soldiers who are medically disqualified and pending separation for non-duty related impairments may request a physical evaluation board (PEB) for the purpose of fitness determination and that those Soldiers are not eligible for disability benefits for non-duty related impairments.  Along with the notification, the applicant was required to acknowledge the notification and elect one of the three options on the notification of medical unfitness for retention and election of options.  

6.  A copy of the option memorandum is not available for review with this case; however, it would have required the applicant to acknowledge the notification and elect one of the following options on the notification of medical unfitness for retention and election of options:

	a.  request reassignment to the Retired Reserve in accordance with Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), if she had completed 20 years of qualifying years;

	b.  request reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60 (15 year retirement);

	c.  request honorable discharge from the USAR; or

	d.  request an informal Medical Evaluation Board (MEBD)/PEB to review her medical records for a final determination of medical fitness for retention.

7.  On 13 August 2005, Headquarters, 81st RRC, published Orders 05-225-00095, directing the applicant’s reassignment to the Retired Reserve under the provisions of Army Regulation 140-10, effective 13 September 2005, by reason of being medically disqualified.

8.  The applicant’s ARPC Form 249-E, dated 10 September 2009, shows she completed 13 qualifying years of service in the USN/USNR from September 1988 to 14 March 2002 and 3 qualifying years of service in the USAR from 14 March 2002 and 14 September 2005, for a total of 16 years and 7 days of qualifying service towards non-regular retirement.  

9.  Title 10, U.S. Code (USC), section 12731 provides the legal age and service requirements for age and service for Reserve non-regular retirement.  It states that a person is entitled, upon application to retired pay if the person has attained the applicable eligibility age, has performed at least 20 years of service computed under section 12732 of this Title; is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve; and in the case of a person who completed the service requirements before 25 April 2005, performed the last six years of qualifying service while a member of any category named in section 12732(a) (1) of this title, but not while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve, except that in the case of a person who completed the service requirements of paragraph (2) before October 5, 1994, the number of years of such qualifying service under this paragraph shall be eight. 





10.  Title 10, USC, 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 a Reserve Component (RC) who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit 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 served in a RC.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she should be issued a 15-Year Letter in order to be eligible to receive non-regular retired pay at age 60.  

2.  By law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement.  However, a member of the Selected Reserve of a RC who is medically disqualified for continued service in a RC may be considered as having met the service requirement and may be issued a Notification for Eligibility for Non-Regular Retired Pay at Age 60, 15-Year Letter, if the member completed at least 
15 years, but less than 20 years of qualifying service for non-regular retirement purposes. 

3.  The evidence of record in this case confirms the applicant completed a total of 16 years and 7 days of qualifying service for non-regular retirement between 6 September 1988 and her transfer to the Retired Reserve on 13 September 2005.  She was issued an order transferring her to the Retired Reserve by reason of medical disqualification.  However, in the case of a person who completed the 15 qualifying years of service, before 25 April 2005, the law required the Soldier to have performed the last 6 years of qualifying service while a member of the Selected Reserve.

4.  The applicant in this case completed her 15 years of qualifying service during retirement year 2003.  At that time, she had not completed the last 6 years while a member of the Selected Reserve.  Therefore, regrettably, she does not qualify for the issuance of a 15-year letter.




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)                                         AR20090009694



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ABCMR Record of Proceedings (cont)                                         AR20090009694



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