BOARD DATE:	  3 March 2011

		DOCKET NUMBER:  AR20100020428 


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 his honorable discharge be changed to a medical discharge.

2.  The applicant states he was returning home from active duty when he was attacked and lost his right eye.  He states he was on active duty until he made it home, but he wound up in a hospital in Huntsville, AL.

3.  The applicant provides:

* his DD Form 214 (Report of Separation from Active Duty) with an effective date of 23 June 1977
* a portion of his Officer Evaluation Report for the period 16 March 1992 to 27 March 1992
* a letter, dated 13 June 1993, from U.S. Army Reserve Personnel Center (ARPERCEN) with enclosure
* a letter, dated 22 June 1993, from the applicant to ARPERCEN
* a letter, dated 14 July 1993, from an optometrist in Huntsville, AL
* his DARP Form 249-2-E (Chronological Statement of Retirement Points), dated 10 September 1993
* a letter, dated 30 September 1993, from ARPERCEN


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 born on 3 June 1952.  He was commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 24 June 1977.  He had previously served 2 years and 26 days in an enlisted status in the Regular Army.

3.  Other than the applicant's statement, the details and circumstances concerning his being attacked and the loss of his right eye are not available.

4.  On 13 June 1993, the Chief, Physical Evaluation Branch, ARPERCEN notified the applicant he did not meet the standards for retention in the USAR due to a medical disqualification.  ARPERCEN stated he must elect to be discharged from the USAR, transfer to the Retired Reserve, or request a waiver for retention.  In the enclosure to this letter the applicant elected to be transferred to the Retired Reserve.

5.  On 22 June 1993, he submitted a request for continuance in the active USAR.

6.  An optometrist examined the applicant on 13 July 1993.  The examiner found the applicant had a history of trauma to the right eye in April 1992, resulting in the complete permanent loss of vision of the right eye.  The right eyeball was intact and a prosthesis covered it.

7.  The applicant's DARP Form 249-2E shows he had 16 years and 27 days of qualifying service for retired pay on 23 June 1993.

8.  On 30 September 1993, ARPERCEN denied his request for waiver of his medical disqualification and retention in the active USAR.

9.  On 17 November 1993, he was discharged from the USAR.

10.  Title 10 of the U.S. Code (USC), section 12731 provides the legal authority for age and service requirements for non-regular service retired pay.  It states, in pertinent part, that members are entitled to retired pay when they are at least 
60 years of age and have performed at least 20 years of qualifying service.  

11.  Title 10, USC, section 12731a, in effect at the time, was a temporary special retirement qualification authority.  

	a.  It provided that, during the period beginning 23 October 1992 through 
30 September 1999, a member of the Selected Reserve who had completed at least 15, and less than 20 years of qualifying service as of 1 October 1991 could, upon the request of the member, be transferred to the Retired Reserve.  It was offered to any Selected Reserve member who no longer met the qualifications for membership n the Selected Reserve solely because the member was unfit because of physical disability.  

	b.  Section 12731a(c)(3) provided for the notification to a member who no longer met the qualifications for membership in the Selected Reserve solely because they were unfit because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have received a medical discharge instead of an honorable discharge from the USAR.

2.  There is no evidence of record and the applicant provided no evidence to show his injury was incurred while he was on active duty or otherwise entitled to basic pay.

3.  However, ARPERCEN determined he did not meet the standards for retention in the USAR due to a medical disqualification.  At the time of this determination he had over 15 years of qualifying service for retirement pay.  Therefore, based on the law in effect at the time, he should have been issued a 15-year letter and transferred to the Retired Reserve.

4.  In view of the above, it is appropriate to void his discharge of 17 November 1993, issue him a 15-letter, and transfer him to the Retired Reserve with eligibility for retirement pay at age 60.

5.  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 should be directed 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 website 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:

* voiding his discharge of 17 November 1993
* issuing him a 15-year letter
* showing he was transferred to the Retired Reserve effective 17 November 1993 with eligibility for retired pay at 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)                                         AR20100020428





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ABCMR Record of Proceedings (cont)                                         AR20100020428



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