IN THE CASE OF:	

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090016556 


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 he be issued a Notification of Eligibility for Retired Pay at Age 60 (15 Year Letter).  

2.  The applicant states he was transferred from a Troop Program Unit (TPU) of the U.S. Army Reserve (USAR) to the Retired Reserve on 18 November 2007, because he was medically disqualified from further service.  He further states he was authorized early retirement under the provisions of Title 10 of the U.S. Code, Section 12731b (10 USC 12731b) and he believes it is unjust for him not to be issued a 15 Year Letter confirming eligibility for non-regular retirement.  

3.  The applicant provides the following documents in support of his application:

* Congressional Inquiry 
* Retirement Orders dated 19 October 2007
* ARPC Form 249-2-E (Chronological Statement of Retirement Points)
* DA Form 3349 (Physical Profile) dated 18 October 2007
* DA Form 2173 (Statement of Medical Examination and Duty Status) dated 
18 August 2005
* Notification of Medical Disqualification Option Statement
* Chief Transition and Separations Branch Electronic Mail (e-mail) Message dated 29 January 2008.  


CONSIDERATION OF EVIDENCE:

1.  The applicant's record contains an ARPC Form 249-E that shows he was born on 23 May 1956.  He completed a total of 17 years and 2 days of qualifying service for non-regular retirement purposes between 29 March 1976 and 
19 November 1997.  

2.  The ARPC 249-E shows the applicant completed 15 years of his qualifying service on active duty in the Regular Army between 29 March 1976 and            28 March 1992; and 2 years of qualifying service in the USAR between 29 March 1992 and 11 November 2005.  

3.  The applicant's record contains a memorandum, Subject: Notification of Medical Disqualification option statement completed by the applicant on 
18 October 2007.  The memorandum shows the applicant acknowledged receipt of the notice regarding his medical disqualification and of the options available to him.  He selected the option to be transferred to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60.  He further indicated he had at least 15 but less than 20 years of qualifying service.  

4.  On 19 October 2007, Orders 07-292-00015, published by Headquarters, Army Reserve Medical Command, Pinellas Park, Florida, reassigned the applicant from his USAR TPU to the Retired Reserve, in the rank of staff sergeant, effective 18 November 2007.  The reason on the orders contains the entry "medically disqualified-not result of own misconduct" confirming the applicant's medical disqualification from further service.  The additional instructions portion of these orders indicate the applicant is authorized early retirement under          10 USC 12731b.  

5.  On 29 January 2008, the U.S. Army Human Resources Command, St. Louis, Missouri (HRC-St. Louis) Chief, Transition and Separations Branch, published an e-mail message outlining the facts surrounding the applicant's case.  He indicated that eligibility for a 15 Year Letter is authorized under the provisions of 10 USC 12731b and that the status of a Soldier at the time he attained 
15 qualifying years determines what requirement has to be met.  In this case, the applicant attained 15 qualifying years for retirement in 1992, while he was still in an RA status.  According to the law in effect at the time, the applicant had to have served the last 8 years in a Reserve Component (RC).  


6.  In his e-mail message of 29 January 2008, the HRC-St. Louis Chief, Transition and Separations Branch, further stated a review of the applicant's case showed he was misled by his RC unit.  The unit conducted a medical disqualification board, found the applicant unfit for retention, published an order placing him in the Retired Reserve, and told him HRC-St. Louis would provide him a 15 Year Letter.  He further indicated that had the unit followed standard operating procedure, or called the Reserve Command G-1 and asked for assistance, the applicant would have been properly counseled on his options.  He indicates at this point, the applicant had to apply to this Board for relief and inform the Board he is seeking a 15 Year Letter citing his medical disqualification. 

7.  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 an RC.  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.   

8.  Title 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 he should be issued a 15 Year Letter has been carefully considered.  However, the evidence is not sufficient to support granting the requested relief.  By law, members who completed the service requirements before 5 October 1994 had to complete the last eight years of qualifying service in an RC.  

2.  The evidence of record confirms the applicant was medically disqualified from further service while serving in the Selected Reserve and transferred to the Retired Reserve on 18 November 2007.  However, it also shows he completed the 15 year service requirement in 1992, while serving in the RA. 

3.  The record also shows the applicant completed only 2 years of qualifying service in the USAR.   As a result, in spite of the information contained in his orders and the information he received from his unit, it would be contrary to law and not in the best interest of all those who were medically disqualified from further service in an RC and who faced similar circumstances to grant the requested relief.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  The applicant has not shown error, injustice, or inequity for the relief he requests.

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)                                         AR20090016556



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ABCMR Record of Proceedings (cont)                                         AR20090016556



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