IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100011272 


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 her request for a 15-year letter.

2.  The applicant states although the information in the original Record of Proceedings appears to be accurate, what is not reflected is that she was diagnosed with multiple sclerosis in 1997 while she was still in a troop program unit (TPU).  Each and every move from that point on was directed by the Personnel Management Officer (PMO).  Almost every time she called her PMO in St. Louis, MO, she got a different person who felt that the last person was wrong and was going to fix what they had done.  She was told she had to wait until age 59 to even apply for retirement even though it was a medical issue.  The law fits her situation as she had completed 15 "Good" years and left the military only due to her medical condition.  She left her TPU prior to applying because she was unable to continue to perform her duties but she was not old enough to apply.  She was put on permanent disability from her civilian job and she was granted social security benefits.  She feels the denial of her application is based simply on a technicality that was caused by erroneous information received from her PMO who may have needed further training in this area as it is an unusual situation.  She has put in her time and she deserves her retirement.

3.  The applicant did not provide any additional documentary evidence.





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 AR20090007977, on 3 November 2009.

2.  The applicant did not provide any new evidence; however, she has provided a new argument which was not previously considered by the Board.  Therefore, it is considered new evidence and warrants consideration by the Board.

3.  The applicant's records show she was born on 16 June 1949 and she was appointed as a second lieutenant in the U.S. Army Reserve (USAR) on 15 August 1984.  

4.  She completed various training courses and served in various Army Nurse Corps positions with the 349th General Hospital, Los Angeles, CA.  She was promoted to captain on 15 August 1991 and major on 26 August 1998.  

5.  The applicant's officer evaluation report (OER) for the period ending             13 August 1999 includes a comment that because of scheduling conflicts she was requesting transfer to the Individual Ready Reserve.

6.  On 17 April 2000, the 63rd Regional Support Command, Los Alamitos, CA, published Orders 00-108-005, transferring her from her TPU to the USAR Control Group (Reinforcement) for personal cogent reasons.

7.  On 27 December 2006, she was released from the USAR Control Group (Reinforcement) and assigned to the Standby Reserve (Inactive List) because she made no military service obligation election.

8.  On 18 June 2007, she was notified that she was disqualified for retention in the USAR due to multiple sclerosis, asthma, degenerative joint disease, and lower back pain with sensory dysesthesias.

9.  On 31 August 2007, the applicant was honorably discharged from the USAR.  There is no evidence these orders were revoked.

10.  On 6 September 2007, she was transferred from the Standby Reserve (Inactive List) to the USAR Control Group (Reinforcement).

11.  On 17 December 2007, she was released from the USAR Control Group (Reinforcement) for being medically disqualified and assigned to the Retired Reserve.

12.  On 18 December 2008, her application for retired pay was denied because she had not completed 20 qualifying years of Reserve service.

13.  Her current ARPC Forms 249-E (Chronological Statement of Retirement Points) shows she had 15 years, 0 months, and 0 days of creditable service for retired pay.

14.  Title 10, U.S. Code (USC), section 12731 provides the legal age and service requirements for age and service for Reserve non-regular retirement.  It states that a person is entitled, upon application to retired pay if the person has attained the applicable eligibility age, has performed at least 20 years of service computed under section 12732 of this Title; and is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.

15.  Title 10, USC, section 12731b provides a special rule for members with physical disabilities not incurred in the line of duty.  It states, in pertinent part, that in the case of a member of the Selected Reserve of a Reserve Component (RC) 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 the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes.  This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she should be issued a 15-Year Letter in order to be eligible to receive non-regular retired pay at age 60.  

2.  By law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement.  However, a member of the Selected Reserve of an RC who is medically disqualified for continued service in an RC may be considered as having met the service requirement and may be issued a Notification for Eligibility for Non-Regular Retired Pay at Age 60, 15-Year Letter, if the member completed at least 15 years, but less than 20 years of qualifying service for non-regular retirement purposes. 

3.  The evidence of record in this case confirms the applicant completed a total of 15 years of qualifying service for non-regular retirement between 15 August 1984 and her transfer to the USAR Control Group (Reinforcement) on 17 April 2000.  However, she was transferred for personal reasons at the time, not for medical reasons.  Her last OER also indicated that she was requesting transfer to the USAR Control Group (Reinforcement) (i.e., the Individual Ready Reserve) because of scheduling conflicts, not because of medical problems.

4.  She was issued an order transferring her to the Retired Reserve by reason of medical disqualification on 28 December 2007, almost eight years after her transfer out of the Selected Reserve.  Although she had completed 15 qualifying years of Reserve service she was not in the Selected Reserve at the time she was found medically unfit for retention.  Therefore, there is no basis for granting her 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 to amend the decision of the ABCMR set forth in Docket Number AR20090007977, dated 3 November 2009.



      _______ _  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)                                         AR20100011272



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ABCMR Record of Proceedings (cont)                                         AR20100011272



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