IN THE CASE OF:
BOARD DATE: 18 January 2011
DOCKET NUMBER: AR20100016586
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 his previous request for a 15-year nonregular retirement based on his inability to fulfill his military obligation due to medical reasons.
2. The applicant states:
* his failure to timely file his original request within this Board's 3-year statute of limitations was not his fault
* he was injured in a mine accident on 14 May 1992 and the Social Security Administration (SSA) awarded him 100-percent disability on 6 April 2006
* he tried to reenlist on 12 September 2001, but was rejected
* he didn't even know about the 15-year retirement provision until April 2009
3. The applicant provides a copy of the SSA's "Notice of Decision Fully Favorable," dated 6 April 2007.
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 AR20090016072 on 4 May 2010.
2. The applicant argues that his failure to timely file his request was not his fault. He submits new evidence in the form of the SSA decision.
3. The applicant's service history is as follows:
* Regular Army from 29 June 1972 through 25 June 1976
* Army National Guard (ARNG) from 26 June 1976 through 15 February 1984
* U.S. Army Reserve (USAR) from 22 August 1984 through 21 August 1985
* ARNG from 22 August 1985 through 21 August 1989
* USAR from 22 August 1989 through 7 October 1993
* USAR Control Group (Reinforcement) from 8 October 1993 through 27 January 1998
4. The applicant reenlisted in the USAR for 3 years on 11 June 1994; this term of enlistment carried him through 10 June 1997 when he would have been required to reenlist in order to continue to serve. He failed to take action to execute a reenlistment and remained in a Reserve Component status until 27 January 1998, at which time he was involuntarily discharged based on the expiration of his term of service (ETS). He had 16 years and 10 months of qualifying service for nonregular retirement.
5. The applicant's records show he underwent an over-40 physical examination on 8 December 1992. At that time, he was determined to be qualified for continued service; however, he was issued a 90-day temporary physical profile for residuals from an electric shock (status post electrocution).
6. Title 10, U.S. Code, section 12731b, provides the age and service rules for nonregular retirement at age 60 for members with physical disabilities. It states 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 determine to treat the member as having met the service requirements for nonregular retirement if the member has completed at least 15 and less than 20 years of qualifying service.
DISCUSSION AND CONCLUSIONS:
1. The applicant argues, in effect, he should not be penalized for his failure to timely file his original request for a 15-year nonregular retirement. The applicant
was given full consideration of his request on 4 May 2010. The Board's original Record of Proceedings clearly states, "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
." Therefore, his argument is without merit.
2. The applicant was involuntarily discharged because his 3-year enlistment of 11 June 1994 expired and he failed to take action to reenlist. He was not denied reenlistment because of a medical condition that rendered him unfit to perform military service. The fact the SSA found him disabled as of 6 April 2006 has no bearing on his involuntary discharge for failing to reenlist upon his ETS.
3. The applicant had a responsibility to look after his career. He knew his enlistment would expire on 10 June 1997 yet he took no positive action to reenlist and remain a Reserve Soldier in good standing. Six months following his ETS, he was involuntarily discharged.
4. In addition, it is presumed that the applicant was in good medical condition when he reenlisted on 11 June 1994. It appears he was in the Individual Ready Reserve at that time, not in the Selected Reserve.
5. In order to justify correction of a military record, the applicant must satisfactorily show or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant did not submit sufficient evidence that would satisfy this requirement. Therefore, he is not entitled to relief.
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 the overall merits of this case are
insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100016072, dated 4 May 2010.
____________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) AR20100016586
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ABCMR Record of Proceedings (cont) AR20100016586
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