IN THE CASE OF:
BOARD DATE: 9 August 2011
DOCKET NUMBER: AR20110002305
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 to be issued a 15-year letter.
2. The applicant states the law provides that members with physical disabilities incurred in the line of duty are authorized early retirement at age 60 if the member has completed at least 15 years but less than 20 qualifying years of service and she was authorized early retirement under Title 10, U.S. Code, section 12731b. However, she was never issued a 15-year letter.
3. The applicant provides copies of:
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* orders transferring her to the Retired Reserve
* her marriage certificate
* her DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* her U.S. Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points)
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 enlisted in the U.S. Army Reserve Delayed Entry Program on 23 February 1980. She enlisted in the Regular Army on 15 October 1980 and she served until she was honorably discharged on 30 July 1994 under the Early Separation Benefit Program for the Variable Separation Incentive. She completed 13 years, 9 months, and 16 days of active service and was transferred to a U.S. Army Reserve unit in East Point, Georgia.
3. Orders 06-188-00007, Headquarters, 81st Regional Readiness Command, dated 7 July 2006, show the applicant was released from her current assignment by reason of being medically disqualified and transferred to the Retired Reserve effective 7 August 2006. These orders also authorized the applicant early retirement in accordance with Title 10, U.S. Code, section 12731b. She had 19 years of creditable service for retired pay.
4. A review of her ARPC Form 249-E shows she did not attain a qualifying year of service in the U.S. Army Reserve until the fiscal year ending 22 February 2003. She completed her 15th year of qualifying service in the retirement year ending 22 February 2005, at which time she had completed no qualifying years of service in a Reserve Component.
5. Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U.S. Code, by adding section 12731b (Special Rule for Members with Physical Disabilities Not Incurred in Line of Duty). Section 12731b states that a member of the Selected Reserve who no longer meets the qualification for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purpose of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he or she has completed at least 15 years and less than 20 years of service and, at the time, the last 8 years of qualifying service was in a Reserve Component. A qualifying year is one in which a Reserve Component Soldier earns 50 retirement points or more.
6. The law has changed the number of qualifying years that a Soldier must have in order to qualify for a Reserve retirement a number of times, but the number of qualifying years required has always been determined by the date the Soldier attained 20/15 qualifying years of service without regard to component. For example, during the period 5 October 1994-31 December 2001, the last 6 years of qualifying service must have been served in a Reserve Component. During the period 1 January 2002-30 September 2002, the required number of years was 8. During the period 1 October 2002-25 April 2005, it was again 6.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that she should be issued a 15-year letter has been considered and appears to lack merit. The last 6 years of her qualifying service were not performed in a Reserve Component as required by the law in effect at the time she reached her 15th qualifying year.
2. Accordingly, it does not appear that she is eligible to be issued a 15-year letter based on the current calculation of her retirement points. Therefore, there appears to be no basis to grant 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 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) AR20110002305
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ABCMR Record of Proceedings (cont) AR20110002305
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