IN THE CASE OF:
BOARD DATE: 06 May 2010
DOCKET NUMBER: AR20090018009
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 reconsideration of the Board's denial to change his honorable discharge of 31 August 1999 to a medical discharge or medical retirement.
2. The applicant states court transcripts provide the details of his accident at work, diagnosis, treatments, surgeries, and restrictions.
3. The applicant provides a copy of a Department of Workers' Claims Opinion and Award, dated 18 November 2003.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080013087 on 12 November 2008.
2. The applicant submitted a copy of his occupational injury claim that was resolved by the Department of Workers' Claims on 18 November 2003. The court document is new evidence which requires his case be reconsidered by the ABCMR.
3. The applicant served continuously in the U.S. Army Reserve (USAR) from 3 February 1980 through 31 August 1999. He served 2 months and 5 days of active service during Operation Desert Storm. He was released from active duty on 26 March 1991 and returned to his unit.
4. On 1 September 1993, the applicant reenlisted in the USAR for a period of 6 years.
5. Headquarters, 100th Division (Institutional Training), Orders A-324-2, dated 20 November 1998, transferred the applicant from his troop program unit (Selected Reserve) to the USAR Control Group (Reinforcement) effective 1 December 1998. The reason stated for this transfer is "employment conflict."
6. On 31 August 1999, the applicant was discharged from the USAR. Based on the date of his last reenlistment, this would have been the expiration of his term of service. At the time of his discharge the applicant had completed 15 years, 11 months, and 28 days of qualifying service for nonregular retirement pay at age 60.
7. The Department of Workers' Claims Opinion and Award provided by the applicant documents the civilian work-related injury he sustained on 2 January 1999, the treatment he received, and the ultimate determination that he is totally disabled as a result of his work-related accident.
8. Title 10, U.S. Code, chapter 1223 (Retired Pay for Nonregular Service), section 12731 (Age and Service Requirements), states a person is entitled upon application to retired pay in the Retired Reserve if the person is 60 years of age and has performed at least 20 years of qualifying service.
9. Title 10, U.S. Code, section 12731b (Special Rule for Members with Physical Disabilities Not Incurred in Line of Duty), states 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 entitlement to retirement pay, determine to treat the member as having met the required 20 years of qualifying service. The Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay if the member has completed at least 15 years and less than 20 years of qualifying service.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should be medically retired from the USAR based on his civilian work-related injury.
2. The fact that the applicant suffered a civilian work-related injury and the severity of that injury are not in question in this case. The injury and his condition are both well documented.
3. The applicant was transferred from the Selected Reserve effective 1 December 1998 by reason of an employment conflict. This was 1 month before he was injured on the job. Therefore, the applicant was not a member of the Selected Reserve at the time of his injury.
4. Section 12731b of Title 10 applies only to members of the Selected Reserve. At the time of the applicant's discharge on 31 August 1999 he was not a member of the Selected Reserve. Therefore, there is no entitlement for the applicant to receive a medical retirement under the provisions of section 12731b of Title 10.
5. 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 has failed to submit evidence that would satisfy that requirement.
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 to amend the decision of the ABCMR set forth in Docket Number AR20080013087, dated 12 November 2008.
____________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) AR20090018009
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