BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090016846 


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 correction of his records to show he is entitled to retired pay.

2.  The applicant states, in effect, two conflicting medical examination reports resulted in his untimely and unwarranted reassignment to the inactive retired reserve.  He also states that he was not advised of his options for early retirement, which has led to a delay in obtaining his retirement pension.

3.  The applicant provides, in support of his application, two memoranda, orders, and his statement of retirement points.

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 was inducted and entered active duty in the Army of the United States for a period of 2 years on 18 March 1968.  Records show his date of birth is recorded as 15 November 1947.  The applicant served in the Republic of Vietnam from 3 August 1968 to 3 August 1969.  He was honorably released from active duty on 17 March 1970 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his Reserve obligation.

3.  The applicant enlisted in the Regular Army (RA) on 25 September 1972 for a period of 3 years.  He was honorably discharged on 18 September 1975.

4.  The applicant enlisted in the USAR on 26 February 1987.

5.  Headquarters, 99th Regional Readiness Command (RSC), Coraopolis, PA, Orders 03-310-00004, dated 6 November 2003, as amended by Orders
06-038-00200, dated 7 February 2006, show the applicant was released from his USAR unit of assignment based on medical disqualification (not the result of his own misconduct) and reassigned to the Retired Reserve, U.S. Army Reserve Personnel Command (AR-PERSCOM), St. Louis, MO, effective 1 November 2003.  The orders also show the applicant was authorized early retirement under Title 10, U.S. Code, section 12731b.  The additional instructions, in pertinent part, also state, to obtain further information, address correspondence to the Commander, AR-PERSCOM, Attention:  ARPC-ALQ, 1 Reserve Way, St. Louis, 63132-5200, or call 1-800-318-5298.

6.  ARPC Form 249-2-E (Chronological Statement of Retirement Points), dated 27 January 2010, shows the applicant was transferred from the USAR to the USAR (Retired) on 2 November 2003.  At the time he had 2,910 total creditable retirement points and he had completed 18 years and 7 months of qualifying service for retirement.

7.  The applicant's records do not contain any evidence that his disability was the result of his intentional misconduct, willful neglect, or willful failure to comply with established standards and qualifications for retention, or that his disability was incurred during a period of unauthorized absence.

8.  A review of the applicant's military service records failed to show that he was issued a Notification of Eligibility for Retired Pay at Age 60 by Headquarters, U.S. Army Human Resources Command, St. Louis.

9.  In support of his application, the applicant provides copies of the following documents.

   a.  Headquarters, 475th Quartermaster Company, Beaver Falls, PA, memorandum, dated 30 September 1998, subject:  Request Assistance in Obtaining Referral for an Immediate Fitness for Duty Medical Evaluation at WRAMC [Walter Reed Army Medical Center], and 1st Endorsement, dated
12 November 1998.  These documents show, in pertinent part, the Medical Plans Officer, 99th RSC, determined that the applicant was disqualified for retention in the USAR in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), paragraph 3-33, based on anxiety disorder persistence of symptoms, which were sufficient to require necessity for limitation of duty, resulting in interference with effective military performance.  He also recommended the applicant be separated from the USAR.

   b.  Headquarters, 347th Quartermaster Company, Farrell, PA, memorandum, dated 3 February 2003, subject:  Commander's Recommendation for Sergeant [Applicant's Name and Social Security Number], shows the applicant's commander recommended medical separation of the applicant.  This document also shows the commander reviewed the applicant's military file, he determined the applicant had completed 16 qualifying years towards retirement at age 60, and he qualified for the early retirement category of over 15 years, but less than 20 years.
   
10.  Army Regulation 40-501, chapter 3, provides policy and establishes medical retention qualification standards to ensure all Soldiers are physically qualified to perform their duties in a reasonable manner.  These standards include guidelines for applying them to fitness decisions in individual cases.

11.  Title 10, U.S. Code, section 12731b (Special rule for members with physical disabilities not incurred in line of duty), provides that 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.  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 contends that his records should be corrected to show he is entitled to retired pay at age 60.

2.  Records show the applicant was released from his USAR unit of assignment based on medical disqualification (not the result of his own misconduct), effective
1 November 2003, and he was reassigned to the USAR (Retired Reserve) on
2 November 2003.  Records also show he had completed 18 years and 7 months of qualifying service for retirement at the time.  However, there is no evidence of record that shows the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 by Headquarters, U.S. Army Human Resources Command,
St. Louis.

3.  The evidence of record shows the applicant attained the age of 60 on
15 November 2007.  Thus, he was entitled to begin receiving retired pay effective on that date.  Therefore, it would be appropriate to correct his records to show that he was officially and timely notified of his eligibility for retired pay at age 60.

4.  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:  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 be corrected by:

	a.  showing the applicant was eligible to apply for early qualification for retired pay at age 60, that he so applied prior to being assigned to the Retired Reserve on 2 November 2003, and that his application was approved and appropriately processed in a timely manner; and

	b.  paying to the applicant all due retired pay retroactive to the date he turned age 60.



      ____________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)                                         AR20090016846



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ABCMR Record of Proceedings (cont)                                         AR20090016846



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