IN THE CASE OF:
BOARD DATE: 4 May 2010
DOCKET NUMBER: AR20090016072
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 a 15-year nonregular retirement based on his inability to fulfill his military obligation due to medical reasons.
2. The applicant states he was separated from the Army without consideration of a 15-year retirement. He claims at the time he was unable to fulfill his military obligation due to medical reasons; therefore, he should have been issued a Notification of Eligibility for Retired Pay at Age 60 (15-year letter) based on completion of 15 but less than 20 years of qualifying service for nonregular retirement.
3. The applicant provides one page of a Department of Veterans Affairs (VA) Rating Decision 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 shows he served on active duty in the Regular Army from 29 June 1972 through 25 June 1976, at which time he was honorably released from active duty and transferred to an Army National Guard unit.
3. The applicant served in a Reserve Component status in the Army National Guard and U.S. Army Reserve until 27 January 1998, at which time he was involuntarily honorably discharged based on the expiration of his term of service (ETS). On 8 October 1993, he had been voluntarily transferred from a USAR troop program unit to the USAR Control Group (Reinforcement).
4. The applicant's official military personnel file shows he failed to take action to reenlist upon reaching his ETS on 10 June 1997 and was ultimately involuntarily discharged by reason of ETS on 27 January 1998.
5. The Army Reserve Personnel Command Form 249-E in the applicant's record confirms he completed a total of 16 years and 10 months of qualifying service for retirement between 29 June 1972 and 27 January 1998. His record is void of any indication that he was denied further service at his ETS based on a disqualifying medical condition.
6. The applicant provides one unsigned page of a VA Rating Decision that indicates he was denied entitlement to a 100-percent disability rating because it wasn't shown he was unable to work as a result of his service-connected disabilities. It further shows his 20-percent disability rating for residuals of right shoulder dislocation with traumatic arthritis was increased to 30 percent and his 10-percent disability rating for recurrent dislocation of left shoulder was increased to 20 percent effective 6 November 2003. There is no background military medical record information in this document that indicates the level of disability at the time he was originally granted a VA rating.
7. Title 10, U.S. Code, section 12731b, provides the age and service rules for nonregular retirement at age 60 for members with physical disabilities. It states 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 determine to treat the member as having met the service requirements for nonregular retirement if the member has completed at least 15 and less than 20 years of qualifying service.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention he should have been issued a 15-year letter and considered qualified for nonregular retirement at age 60 based on completion of at least 15 years of qualifying service because he was medically unable to fulfill his military service obligation has been carefully considered. However, the evidence is not sufficient to support this claim.
2. The evidence of record confirms the applicant was involuntarily discharged as a result of failing to take action to reenlist upon his ETS. The record provides no indication that he suffered from a medical condition that rendered him unfit to perform military service or that he was denied reenlistment based on a disqualifying medical condition.
3. There is no evidence of record to show his transfer to the USAR Control Group (Reinforcement) was due to medical reasons. There is no evidence of record to show he returned to the Selected Reserve after 8 October 1993.
4. The fact the applicant subsequently received a disability rating from the VA for service-connected medical conditions does not provide a basis to conclude these conditions medically disqualified him from further service at the time of his ETS.
5. Further, the partial VA documents provided by the applicant indicate he was denied a 100-percent rating because the evidence did not show he was unable to work. Absent any evidence of record confirming the service-connected medical conditions for which he received a disability rating from the VA or any other medical conditions rendered him unfit to perform his military duties at the time of his ETS, there is an insufficient evidentiary basis to support granting the requested relief.
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) AR20090016072
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ABCMR Record of Proceedings (cont) AR20090016072
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