IN THE CASE OF:	

		BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090014487 


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 his record be corrected to show he is eligible for Reserve retired pay at age 60.   

2.  The applicant states he should have been issued a notification for eligibility for retired pay at age 60 (15 Year Letter) because he was medically disqualified from further service.  He is now requesting the retired pay he is due.   

3.  The applicant provides an ARPC 249-E (Chronological Statement of Retirement Points) and Soldier Transaction List 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's record contains an ARPC Form 249-E that shows he completed 16 years and 5 months of qualifying service for non-regular retirement between 31 May 1967 and 10 August 2004.  It also confirms his date of birth is 18 May 1947.  

3.  The applicant's ARPC Form 249-E further shows he completed the last           6 years, 1 month, and 13 days of qualifying service in the United States Army Reserve (USAR) between 16 January 1982 and 27 June 2004.  

4.  On 9 June 2004, while the applicant was a member of the 479th Engineer Battalion, a USAR Troop Program Unit (TPU) of the Selected Reserve, the command surgeon of the United States Army 77th Regional Readiness Command (RRC), Fort Totten, New York, prepared a Notification of Unfitness for Retention Memorandum pertaining to the applicant.  

5.  The unfitness memorandum notified the applicant's commander and the applicant that as a result of a medical examination, the applicant was medically disqualified from continued service in the USAR due to his right knee degeneration.  It also advised the applicant that as a result of his medical disqualification, if he had at least 15 but less than 20 years of qualifying service for retired pay purposes, he could request reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60.  

6.  On 9 June 2004, the applicant completed an option form he was provided with the unfitness memorandum.  In it, he elected to be transferred to the Retired Reserve with early qualification to receive retired pay at age 60 because he had completed at least 15 years but less than 20 years of qualifying years of service for retirement purposes. 

7.  On 12 September 2004, Headquarters, 77th RRC published Orders 
04-256-00042 that directed the applicant's release from his current assignment and transfer to the Retired Reserve, effective 9 August 2004, by reason of being medically disqualified-not as a result of his own misconduct.  The additional instructions of the orders indicated the applicant had 15 but less than 20 years of qualifying service for retirement purposes and he was authorized early retirement under Title 10 of the U.S. Code, Section 12731b (10 USC 12731b).  

8.  There is no indication the applicant was issued a 15 Year Letter when he was transferred to the Retired Reserve, and he turned 60 on 17 May 2007.  

9.  10 USC 12731 provides the age and service requirements necessary to qualify for retired pay at age 60.  It states a person is eligible to receive retired pay at age 60 upon application if they have completed 20 or more years of qualifying service while a member of a Reserve Component (RC).  
10.  The same law states that in the case of a person who completed the service requirements before 25 April 2005, that person must have performed the last six years of qualifying service while a member of an RC, but not while a member of a regular component, except for a person who completed the service requirements before 5 October 1994, in which case he must have performed the last eight years of qualifying service in an RC.  There is no such RC service requirement for those members who completed the qualifying service on or after 25 April 2005.   

11.  10 USC 12731b provides the special rule for members with physical disabilities not incurred in line of duty.  It states in the following in the sub-paragraphs:

	a.  In the case of a member of the Selected Reserve of a reserve component 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 purposes of section 12731 of this title, determine to treat the member as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member has completed at least 15, and less than 20, years of service computed under section 12732 of this title.  

	b.  Notification under subsection (a) may not be made if the disability was the result of the member’s intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention established by the Secretary concerned; or the disability was incurred during a period of unauthorized absence. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should receive retired pay based on his medical disqualification from further service has been carefully considered and found to have merit.  

2.  By law, members who have completed at least 15 but less than 20 years of qualifying service for non-regular retirement at age 60 who no longer meet the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability should be considered to have met 

the requirements to receive retired pay at age 60 if they have met all other requirements.  The law stipulates in the case of a member who completed the  15 year service requirement before 25 April 2005, he/she must have performed the last six years of qualifying service while a member of an RC.  I

3.  In this case, the ARPC Form 249-E in the record shows the applicant completed the last six years of qualifying service in the USAR between 
16 January 1982 and 9 August 2004.  As a result, it would be appropriate to issue him a 15 Year Letter, effective the date he was transferred to the Retired Reserve in conjunction with medical disqualification.  

4.  Further, because he turned 60 on 17 May 2007, his record should be corrected to show his eligibility for retired pay and placement on the Retired List at age 60 on 18 May 2007.  In addition, he should be provided all back retired pay due as a result.  

5.  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 by corrected by:

	a.  showing that he was eligible for a 15 Year Letter and retired pay at age 60, that he applied for retired pay in a timely manner, and that his request was received and processed in a timely manner to be effective upon reaching age 60; and
	b.  paying him any and all back retired pay due as a result of the above correction.




      _______ _ 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)                                         AR20090014487



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ABCMR Record of Proceedings (cont)                                         AR20090014487


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