BOARD DATE:	6 September 2011 

		DOCKET NUMBER:  AR20100027916 


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 correction of his records to show he retired under medical conditions.

2.  The applicant states, in effect, he was medically discharged from the U.S. Army Reserve (USAR) and was supposed to receive retirement money.

3.  The applicant provides copies of his certificate showing he was transferred to the Retired Reserve on 13 May 1986; DA Form 2173 (Statement of Medical Examination and Duty Status), dated 18 June 1985; and DD Form 214 (Report of Transfer or Discharge) effective 16 June 1971.

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.  Following prior active duty and Reserve service, the applicant reenlisted in the USAR on 9 June 1982, for a period of 6 years.  He was serving as a sergeant first class/E-7.  His military occupational specialty was 94B (Food Service Specialist) and he was assigned to the 296th Transportation Company, Brookhaven, MS.

3.  On 6 June 1985, while on annual training, the applicant was taken to the General Leonard Wood Army Community Hospital, Fort Leonard Wood, MO, after complaining of chest pains.  He was admitted to the hospital on 6 June 1985, and he was aeromedically evacuated to the hospital at Keesler Air Force Base, MS.   He was released from the hospital on 13 June 1986.

4.  Available records show that a medical evaluation board (MEB) was conducted at the U.S. Air Force Medical Center, Keesler Air Force Base.  Block 25 of the report made a recommendation that the case be forwarded to an Army informal physical evaluation board.

5.  A third endorsement from the Administrative Officer, Headquarters, 121st U.S. Army Reserve Command (ARCOM), Birmingham, AL, dated 5 February 1986, states "…medical records have been reviewed by the ARCOM Surgeon and SM [service member] has been found not qualified for retention.  Request SM be processed under the provisions of chapter 12, Army Regulation 135-178 [Army National Guard and Army Reserve Enlisted Administrative Separations]."

6.  On 11 February 1986, the applicant complained of chest pains while on annual training and was admitted to the Lyster Army Community Hospital, Fort Rucker, AL, where he was diagnosed with a heart attack.  He was released from the hospital on 13 February 1985.

7.  A memorandum from the 296th Transportation Company, dated 7 April 1986, subject:  Discharge Due to Medical Disqualification for Retention, informed the applicant that he was found to have a medical condition which rendered him medically disqualified for further retention in the USAR.  He was offered various options and he elected to be transferred to the Retired Reserve in accordance with paragraph 6-1a(8), Army Regulation 140-10 (USAR Assignments, Attachments, Details, and Transfers).

8.  Orders Number 101-39, Headquarters, Second U.S. Army, dated 30 May 1986, announced he was reassigned to the USAR Control Group (Retired) effective 30 May 1986.  The reason shows "medically disqualified."

9.  His date of birth is 19 February 1950.  He reached age 60 on 19 February 2010.

10.  In the processing of his case, an advisory opinion was obtained from the Chief, Retired Pay Branch, U.S. Army Human Resources Command, Alexandria, VA.  The advisory official stated, in effect:

	a.  Title 10, U.S. Code, section 12731(a), authorizes retired pay for Reserve Component military service.  To be eligible for retired pay under this law, a Reserve Soldier or former Reserve Soldier, upon attaining 60 years of age must have completed at least 15 years, and less than 20 years, of qualifying service computed under section 12732 of this title.  After 1 July 1949, a qualifying year is one in which the Reserve Soldier earned at least 50 retirement points.  The last 6 qualifying years must be in a Reserve Component.  The law authorizing retirement pay based on service in the Reserve Component does not authorize this pay until all requirements have been fulfilled.

	b.  The records of the applicant show he was transferred to the Retired Reserve effective 30 May 1986.  Following transfer to the Retired Reserve the applicant could not have been credited with any retirement points or accrue qualifying time.  The latest Chronological Statement of Retirement Points for the applicant shows he only has 12 years of qualifying time towards reserve retirement.

11.  The advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

12.  Army Regulation 140-10, paragraph 6-1a, provided the authority to assign a member to the Retired Reserve for any one of eight reasons, to include being medically disqualified, not as a result of own misconduct, for retention in an active status regardless of the total years of service completed.

13.  Title 10, U.S. Code, section 12731, provides the legal authority for age and service requirements for non-regular service retired pay.  It states 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.

14.  Title 10, U.S. Code, section 12731a, was a temporary special retirement qualification authority.  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.  In part, it was offered to any Selected Reserve member who was medically disqualified for retention.

15.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

16.  Army Regulation 635-40 states MEBs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  

17.  Army Regulation 40-501 states, in part, coronary heart disease associated with myocardial infarction, angina pectoris, or congestive heart failure due to fixed obstructive coronary artery disease or coronary artery spasm; or myocardial infarction with normal coronary, are causes for referral to an MEB.  However, the policies for trial of duty apply.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is not eligible to receive pay based upon a Reserve retirement because he did not attain 15-20 years of qualifying service.

2.  The applicant's complete medical records are not available.  The evidence 
Indicates he had at least one heart attack.  However, a heart attack per se is not unfitting but if it heals incompletely or abnormally it could result in a Soldier's inability to perform.  The condition that, presumably, failed to meet retention standards was coronary artery disease.  

3.  It appears was evaluated by an MEB.  The fact that he was transferred to the Retired Reserve indicates that his disqualifying condition was not in line of duty (i.e., that it was not a heart attack that rendered him unfit but an underlying condition that was not incurred while he was entitled to basic pay.  As a result, he is not eligible for medical retirement.  He was found to be medically disqualified for further retention in the USAR which entitled him to transfer to the Retired Reserve, but it did not entitle him to retired pay.  

4.  In view of the above, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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 for correction of the records of the individual concerned.



      _________________________
                 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)                                         AR20100020968



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                        AR20100027916



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1