IN THE CASE OF:	  

		BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20110004672 


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 to be issued a Notification for Eligibility for Retired Pay at Age 60 (15-year letter).

2.  The applicant states he provides a doctor's statement concerning an accident he had in May 1995 as new evidence.

3.  The applicant provides Department of Veterans Affairs Health Care Network, Upstate New York, Medical Record – Progress Notes, dated 19 September 1995.

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 AR20090016290, dated 25 March 2010.

2.  The Progress Notes are new evidence that will be considered by the Board.

3.  Having prior service in the Regular Army, the applicant served in the U.S. Army Reserve (USAR) and Army National Guard between 11 July 1970 and 22 April 1998.

4.  In August 1993, he failed an Army Physical Fitness Test (APFT) while serving as a member of a troop program unit (TPU).

5.  On 10 April 1994, a flag was initiated against him for being overweight.  On 10 June 1994, he voluntarily transferred from his TPU to the USAR Control Group (Reinforcement).

6.  Department of Veterans Affairs Health Care Network, Upstate New York, Medical Record – Progress Notes, dated 19 September 1995, state the applicant was admitted for rehabilitation due to a motor vehicle accident on 17 May 1995 in which he sustained multiple fractures to both legs.

7.  On 22 April 1998, he was honorably discharged from the USAR.

8.  His USAR Personnel Command Form 249-E (Chronological Statement of Retirement Points), dated 3 September 2009, shows he completed 15 years, 11 months, and 29 days of qualifying service for retirement purposes.  He did not complete any qualifying years after his transfer to the USAR Control Group (Reinforcement).

9.  Title 10, U.S. Code, section 12731, provides the legal age and service requirements for Reserve nonregular retirement.  It states a person is entitled to retired pay upon application if the person has attained the applicable eligibility age; has performed at least 20 years of service computed under section 12732 of this title; is not entitled under any other provision of law to retired pay from an Armed Force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve; and, in the case of a person who completed the service requirements before 25 April 2005, performed the last 6 years of qualifying service while a member of any category named in section 12732(a)(1) of this title, but not while a member of a Regular Component, the Fleet Reserve, or the Fleet Marine Corps Reserve, except that in the case of a person who completed the service requirements of section 12731a(2) before 5 October 1994, the number of years of such qualifying service under this paragraph shall be 8.

10.  Title 10, U.S. Code, section 12731a, was the temporary special retirement qualification authority.  It provided for a member of the Selected Reserve who, after 23 October 1992 and before 31 December 2001, having completed 15 years but less than 20 years of qualifying service for retirement purposes as having met the requirements for retired pay subject to the needs of the service.  It also provided for a member of the Selected Reserve who no longer met the qualifications for membership because the member was unfit because of physical disability, to be determined to have met the service requirement for the purpose of section 12731 of this title provided the member completed at least 15 years but less than 20 years of qualifying service for retirement purposes.

11.  Title 10, U.S. Code, section 12731b, provides a special rule for members with physical disabilities not incurred in the line of duty.  It states that in the case of a member of the Selected Reserve who no longer meets the qualifications for membership because the member is unfit because of physical disability, the Secretary may determine the member as having met the service requirement for the purpose of section 12731 of this title and provide the member with notification required if the member completed at least 15 years but less than 20 years of qualifying service for retirement purposes.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant is not entitled to a 15-year letter.  Title 10, U.S. Code, section 12731a, permitted 15-year retirements for members of the Selected Reserve who were unfit for continued membership because of a physical disability.  Title 10, U.S. Code, section 12731b, currently provides that only Reserve members who are unfit for membership in the Selected Reserve because of a physical disability may qualify for a 15-year letter.  The applicant was flagged for being overweight and failed the AFPT.  He chose to voluntarily leave the Selected Reserve; he did not request early retirement and he was not processed for a physical disability or a fitness determination.

2.  He provides Department of Veterans Affairs Health Care Network, Upstate New York, Medical Record – Progress Notes, dated 19 September 1995, that show he received rehabilitative care in September 1995 for injuries he received in a car accident in May 1995, after he transferred out of the Selected Reserve.  

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 AR20090016290, dated 25 March 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)                                         AR20110004672



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ABCMR Record of Proceedings (cont)                                         AR20110004672



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