BOARD DATE:	  5 May 2011

		DOCKET NUMBER:  AR20100024869 


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 correction of his record to show he was transferred to the Retired Reserve instead of being honorably discharged from the U.S. Army Reserve (USAR).

2.  The applicant states that when he was found not physically qualified for retention in the USAR, he did not know that he qualified for a 15-year retirement and no one explained the available options to him.

3.  The applicant provides:

* a memorandum, subject:  Notification of Medical Disqualification, dated
8 December 1998
* a Standard Form (SF) 88 (Report of Medical Examination), dated 4 April 1998
* an SF 93 (Report of Medical History), dated 4 April 1998
* his Honorable Discharge Certificate
* an ARPC Form 249-E-2 (Chronological Statement of Retirement Points), dated 3 March 1998
* Orders 37-5, issued by Headquarters, 76th Division, West Hartford, CT, dated 21 March 1994
* Orders D-07-948441, issued by U.S. Army Reserve Personnel Command, St. Louis, MO, dated 7 July 1999


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, a career reservist then assigned to the Individual Ready Reserve (IRR), was found not qualified for retention by a physical examination on 4 April 1998.  His ARPC Form 249-2-E, dated 3 March 1998, shows he had
18 years, 11 months, and 29 days of qualifying service for retirement.  It also confirms his date of birth is 6 January 1948.

3.  A U.S. Army Reserve Personnel Command memorandum, dated 8 December 1998, informed the applicant that he did not meet retention standards due to vascular disease and range of motion of his shoulder in accordance with Army Regulation 40-501 (Standards of Medical Fitness.  He was offered a choice of discharge from the USAR, transfer to the Retired Reserve, or a fitness for duty determination.  The memorandum went on to state that, "If you elect retirement, you will not be eligible for retired pay or other benefits unless otherwise entitled by law…"  The applicant had until 8 February 1999 to respond with his choice.  The memorandum requested the applicant indicate his choice on the enclosed form and return it in the envelope enclosed for his convenience.  The memorandum last stated that failure to reply by the suspense date would result in his automatic discharge.

4.  There is no evidence the applicant completed the option form that was provided with the medical disqualification memorandum and returned it to the appropriate office.

5.  On 7 July 1999 he was discharged from the USAR upon the expiration of his term of service.


6.  Title 10, U.S. Code, section 12731 provides the age and service requirements necessary to qualify for retired pay at age 60.  It states a person is eligible to receive retired pay at age 60 upon application if they have completed 20 or more years of qualifying service while a member of a Reserve Component (RC).  

7.  Title 10, U.S. Code, section 12731b (Special rule for members with physical disabilities not incurred in line of duty), states:

	a.  In the case of a member of the Selected Reserve of a 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 purposes of section 12731 of this title, determine to treat the member as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member has completed at least 15, and less than 20 years of service computed under section 12732 of this title.

	b.  Notification under subsection (a) may not be made if the disability was the result of the member’s intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention established by the Secretary concerned; or the disability was incurred during a period of unauthorized absence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been transferred to the Retired Reserve instead of being discharged and be eligible to receive retired pay based on his medical disqualification from further service has been carefully considered and found be without merit.

2.  By law, only members of the Selected Reserve are eligible to retire after they have completed at least 15 but less than 20 years of qualifying service but no longer meet the qualifications for membership because of physical disability are eligible to retire with pay at age 60.  Even if he had elected transfer to the Retired Reserve when it was offered in 1998 he would not have qualified for retired pay at age 60.

3.  There is no documentation to support the applicant's contention and no rationale to support the implied conclusion that those alleged circumstances would warrant the requested relief.  In view of the foregoing there is no basis for granting the applicant's requested 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 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)                                         AR20100024869



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ABCMR Record of Proceedings (cont)                                         AR20100024869



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