IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100009393 


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 reassessment of his retirement points to include all of his educational degrees, military schools and professional certifications and that he receive all the points that he needs to retire.  He also requests, in the alternative, correction of his records to show he was medically discharged.

2.  The applicant states:

* he served over 21 years in the Armed Forces 
* he was denied the right to retire
* he was disabled while he was serving his country and he should at least have been retired or medically discharged

3.  The applicant provides an undated self-authored statement describing his military service and an illness which he contends should have resulted in a medical discharge.

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 available records show that after completing 10 years of qualifying service for retirement purposes in the U.S. Air Force (USAF), the applicant enlisted in the Regular Army on 9 September 1987.

3.  The applicant remained on active duty until he was honorably discharged on 13 November 1992 for misconduct due to the commission of a serious offense.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he achieved pay grade E-5 prior to his discharge.

4.  After being granted a waiver for enlistment, the applicant enlisted in the U.S. Army Reserve (USAR) on 10 February 1997 for 4 years in pay grade E-4.  He was promoted to pay grade E-5 effective 24 November 1998 and to pay grade E-6 effective 14 February 2000.

5.  The applicant extended his enlistment for an additional 3 months on 6 January 2001 and he extended his enlistment for an additional 1 year on 9 May 2001.

6.  On 15 May 2001, the applicant was notified by the U.S. Army Reserve Personnel Command (ARPERSCOM) that he needed 6 additional years of service in the Reserve to qualify for retirement at age 60.

7.  The applicant was rendered a DA Form 2166-7 (Noncommissioned Officer Evaluation Report) for the period November 2000 through October 2001 which shows he was physically fit for duty during the rating period.

8.  On 24 January 2002, the applicant was discharged from the USAR in pay grade E-5 and he was furnished a General Discharge Certificate.

9.  A review of the available records does not show the applicant was suffering from any medical conditions severe enough to process him for discharge or retirement through medical channels.

10.  The applicant's records show that on 6 May 2004 he was awarded a combined service-connected disability rating of 80 percent for Reiter's syndrome by the Department of Veterans Affairs (VA).

11.  The applicant's ARPC Form 249-E (Chronological Statement of Retirement Points) shows he completed 18 years of qualifying service for Reserve retirement as of 20 July 2010.

12.  In the undated self-authored statement the applicant submitted, he states the following:

* he first requested his 20-year letter to start his retirement paperwork on or about 20 April 2001
* he was told by ARPERSCOM that he did not have enough points to retire and that he needed to complete 6 years in the Inactive Ready Reserve and to "take a bunch of useless courses to build up retirement points"
* he continued to pursue his goal, because when he arrived at his unit they did not want his microfiche records or the prior service records that he had which were copies
* he served the time and he had been placed on the E-6 (staff sergeant) promotion list
* he completed a 2 1/2-year AA Microcomputer Technology Degree, Compita A and Certification, two Microsoft certifications, and a 9-month Microsoft certified systems engineer course
* he added a Bachelor of Science Degree in Computer Information Systems in 2005
* he is presently working on a master's degree in computer science
* he believes he should have sufficient educational course work to meet the requirement
* he was not given a 20-year letter so he stayed in the Army as his health declined due to a chronic illness known as Reiter's syndrome which he contracted while he was in Korea in 1979
* he slowed the effects of the Reiter's syndrome with exercise over the years
* you can only get medical benefits when you are on drill weekends or on "2-week summer assignment" so he could not get help
* he attended drills until he stopped on 2 January 2002 and filed for medical benefits through the VA
* he was awarded an 80-percent service-connected disability rating for Reiter's syndrome by the VA
* his records show he was a good serviceman
* he should have been discharged from the Air Force through medical channels in 1986; however, they did not know
* he served during two wars and he wants the benefits that a serviceman wants after he has served his country

13.  Title 10, U.S. Code, sections 12731 through 12740, authorizes retired pay for Reserve Component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  The term "good years" is an unofficial term used to mean years in which 50 or more retirement points are earned during each anniversary year and which count as qualifying years of service for retirement benefits at age 60.

14.  Army Regulation 135-180 (Army National Guard and USAR Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of retired pay to Soldiers and former Reserve Component Soldiers.  Chapter 2 provides eligibility criteria and, in pertinent part, states that in order to qualify for nonregular retirement a member must have attained age 60, completed a minimum of 20 years of qualifying service, and served, at the time, the last 6 years of his or her qualifying service as a Reserve Component Soldier.

15.  Army Regulation 140-185 (Army Reserve Training and Retirement Point Credits and Unit Level Strength) prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers.  In pertinent part, it provides that an annual statement of retirement points will be prepared for all Soldiers regardless of the number of points awarded.  The purpose of the statement is to give a permanent record of the total retirement points a Soldier earns during a retirement year, to tell the Soldier whether he/she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status, and to give the Soldier an opportunity to request correction of errors in the statement.

16.  Army Regulation 140-185, Table 2-1 (Award of Inactive Duty Training Retirement Points) provides that an individual will be awarded one point for each three credit hours satisfactorily completed when the individual has completed an Army correspondence course – nonresident instruction.

17.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.  In addition, Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

18.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  Although he was a member of the Armed Forces for over 20 years, he appears to lack sufficient qualifying years of service for Reserve retirement as required by law and regulation.

2.  Additionally, he does not contend that he had no knowledge that he needed more years in the Reserve to be eligible for a 20-year retirement.  He was notified by ARPERSCOM in May 2001 prior to his discharge that he needed 6 more years of Reserve service to be eligible for a Reserve retirement and in his own words he stated he had no desire to "take a bunch of useless courses to build up retirement points."

3.  Federal law requires that a member complete 50 points per year to qualify for a Reserve retirement.  The applicant fails to consider the "per year" part of the law.  Under the law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  The term "good years" is an unofficial term used to mean years in which 50 or more retirement points are earned during each anniversary year and which count as qualifying years of service for retirement benefits at age 60.

4.  The applicant contends that he has added more education that was not considered in the calculation for his retirement.  However, unless he can submit documentation showing the education that was obtained was in the form of Army correspondence courses and that they have not already been considered, it must be presumed that his service has been correctly calculated.

5.  While the evidence of record shows the applicant was awarded an 80-percent service-connected disability rating by the VA, there is no evidence in the available records that shows he suffered from any conditions severe enough to process him for discharge or retirement through medical channels while he was in the Army.  He was physically fit for duty when he received his DA Form 2166-7 for the period November 2000 through October 2001, which was just prior to his discharge on 24 January 2002.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100009393



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ABCMR Record of Proceedings (cont)                                         AR20100009393



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