BOARD DATE:	  27 October 2011

		DOCKET NUMBER:  AR20110005231 


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 military records to show he is entitled to a military retirement.  He also requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the Silver Star.

2.  The applicant states he should be retired from the military service.  He was affected by post-traumatic stress disorder (PTSD).  He states he was forced by his superiors to leave with 19 years and 6 months of service.  He should have received treatment and counseling and been allowed to complete the last 
6 months of his term of service in order to retire.  He further states his commanding officer told him he was sending in a citation for the Silver Star.  He was allowed to read what had been written; however, he never heard anything else about it.

3.  The applicant provides:

* a 7-page statement that chronicles his military service.
* two letters from the Department of Veterans Affairs (VA) Medical Center, Decatur, GA, dated 14 December 2004 and 23 August 2005
* copies of three awards

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 commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 28 June 1961.  He had previously served 4 years, 7 months, and 20 days of active service in an enlisted status in the Regular Army.

3.  On 16 November 1962, he requested retention on active duty after completion of his current obligated tour which expired on 27 June 1963.  On 7 December 1962, he was approved for retention on active duty.

4.  He served in the Republic of Vietnam from:

* 24 July 1966 - 17 July 1967
* 29 November 1969 - 18 November 1970

5.  On 28 February 1973, he was notified the Army Active Duty Board had conducted a comprehensive and impartial review of his entire military record under the provisions of Army Regulation 635-100 (Personnel Separations - Officer Personnel), paragraph 3-58.  The board selected him for release from active duty.  

6.  On 25 April 1973, he was released from active duty.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show award of the Silver Star.  There are also no orders in his Military Personnel Records Jacket (MPRJ) awarding him the Silver Star.

7.  On 6 January 1975, a letter to the applicant from the Chief, Removal and Transfer Branch, U.S. Army Reserve Components Personnel and Administration 

Center, St. Louis, MO indicates his Annual Statement of Retirement Credits (AGUZ Form 115) was enclosed (which is not available for review).  However, the letter stated he had not earned the required 27 points for each retirement year since his release from active duty.  Unless a corrected statement reflects the minimum 27 points, his removal from an active status was mandatory under law unless he requested and was authorized a waiver for retention.  He was given 15 days to reply from the date of receipt of the letter.

8.  On 17 April 1975, the Chief, Removal and Transfer Branch approved the applicant's discharge for failing to earn sufficient retirement points for retention.

	a.  He was credited with 16 years of qualifying service.  He failed to accrue the required 27 points needed for retention for retirement year ending (RYE)
7 September 1975 as required by Army Regulation 140-10 (Army Reserve, Assignments, Attachments, Details, and Transfers), paragraph 3-3c(1).

	b.  Under the provisions of Army Regulation 140-10, paragraph 5-1a(5), he was eligible for transfer to the Retired Reserve if he applied, or if he did not apply he would be discharged from his Reserve appointment.

	c.  He was informed of his nonparticipation by letter, dated 6 January 1975; however, the letter was returned by postal authorities marked "Addressee Unknown."

	d.  A note on this letter indicates he was discharged on 29 April 1975.

9.  In a letter, dated 14 December 2004, a staff psychiatrist at the VA Medical Center stated the applicant had been seen in the Mental Health clinic since 
16 January 2004.  The applicant was diagnosed with PTSD, chronic and severe from his combat experiences in Vietnam.

10.  In a letter, dated 23 August 2005, a licensed clinical social worker/board certified diplomat at the VA Medical Center stated the applicant had been seen in the clinic since 16 January 2004.  He stated both he and the staff psychiatrist had diagnosed him with PTSD, chronic and severe from his combat experiences in Vietnam.

11.  Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS) an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the United States Army Human Resources Command failed to reveal any orders awarding him the Silver Star.

12.  Army Regulation 635-100, paragraph 3-58, in effect at the time, stated the records of officers on active duty would be screened annually to determine those officers whose degree of efficiency and manner of performance of duty require relief from active duty or elimination from the service.

13.  Army Regulation 140-10, in effect at the time, prescribed the policies, criteria, and procedures for assignment, detail, removal, and transfer of members of the USAR.

	a.  Paragraph 3-3c(1) stated an officer with less than 20 qualifying years who had completed his/her statutory military service obligation was to be removed from an active status if he/she failed to earn a minimum of 27 retirement points within a retirement year.

	b.  Paragraph 5-1a(5) stated a member of the USAR will, upon request, be assigned to the USAR Control Group (Retired) when they had attained the age of 37 years and completed a minimum of 8 years of qualifying Federal service.

14.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements the statutory authority governing what constitutes qualifying service for retired pay for nonregular service in the Reserve Components.  Chapter 2 states that to be eligible for retired pay, an individual must have attained the age of 60 and completed a minimum of 20 years of qualifying service.  A qualifying year is defined as a year of service during which a Reservist earns at least 50 retirement points.

15.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

16.  Title 10, U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

17.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  The unit must be clearly identified, along with the period of 

assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was notified he had failed to earn 27 retirement points during his retirement year ending 7 September 1974.  At this time he had 16 years of qualifying service for nonregular service retirement.  The letter of notification was returned by postal authorities marked "Addressee Unknown."  Therefore, he was discharged as required.  There is no evidence of coercion.

2.  To be eligible for retired pay based on nonregular service, an individual must have attained the age of 60 and completed a minimum of 20 years of qualifying service.  A qualifying year is defined as a year of service during which a Reservist earns at least 50 retirement points.  He had not completed 20 years of qualifying service.  Therefore, he is not entitled to a nonregular service retirement. 

3.  The VA staff psychiatrist stated the applicant had been seen at the medical center since 16 January 2004 and he diagnosed the applicant with severe PTSD.  This was over 30 years after he was released from active duty.  There is no evidence he suffered from a disability rated at 30 percent at the time of his release from active duty.  Therefore, there is no basis for him to receive a physical disability retirement.

4.  There are no orders in his MPRJ or in ADCARS awarding him the Silver Star.  While the available evidence is insufficient for awarding the applicant a Silver Star, this in no way affects his right to pursue his claim for the Silver Star by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

5.  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)                                         AR20110005231



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ABCMR Record of Proceedings (cont)                                         AR20110005231



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