IN THE CASE OF:	  

		BOARD DATE:	    29 September 2011

		DOCKET NUMBER:  AR20110005540 


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, in effect, to be issued a Notification of Eligibility for Nonregular Retired Pay at Age 60 (15-year letter).

2.  The applicant states he served 15 years, 1 month, and 13 days and he should have received a 15-year notification of eligibility letter.  He states his records show he was an outstanding performer and he intended to serve at least 20 years, if not for injuries incurred while on duty.  He concludes by stating his 15 years of service meant something and he should have something to show for them.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Orders 92-1, State of Minnesota Department of Military Affairs Office of the Adjutant General, dated 21 July 1995
* Army National Guard (ARNG) Retirement Points History Statement, dated 11 August 1995
* an extract from the ARNG Information Guide on Non-Regular Retirement, dated 15 April 2009


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 born on 24 November 1962.  He enlisted in the ARNG on 26 March 1980.  He later enlisted in the Regular Army on 27 October 1982.  His records show he held military occupational specialties (MOS) 19D (Cavalry Scout) and 63T (Bradley Infantry Fighting Vehicle Systems Mechanic).  On 29 September 1992, he was discharged and immediately enlisted in the Minnesota Army National Guard (MNARNG).

3.  On 15 February 1994, his medical records were reviewed by the MNARNG State Medical Duty Review Board for a number of unfitting medical conditions wherein the board recommended his separation from the MNARNG as medically unfit for retention.

4.  Orders 92-1, State of Minnesota Department of Military Affairs Office of the Adjutant General, dated 21 July 1995, discharged him from the ARNG and as a Reserve of the Army for medical unfitness related to the retention standards of Army Regulation 40-501 (Standards of Medical Fitness) effective 10 July 1995 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26y.  His NGB Form 22 shows he was credited with completion of 15 years, 1 month, and 13 days of service.  His rank/grade at the time of his discharge was sergeant/E-5.

5.  His ARNG Retirement Points History Statement, dated 11 August 1995, shows he was credited with the completion of 15 years, 1 month, and 14 days of qualifying service toward nonregular retirement.

6.  Title 10, U.S. Code, section 12731, provides the legal age and service requirements for Reserve nonregular retirement.  It states that a person is entitled upon application to retired pay 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 paragraph (2) before 5 October 1994, the number of years of such qualifying service under this paragraph shall be 8.

7.  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 of a Reserve Component (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 the purpose of section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years, of qualifying service for retirement purposes.

8.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, indicates that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have:  (1) attained age 60, (2) completed a minimum of 20 years of qualifying service, and (3) served the last 8 years of his or her qualifying service as an RC Soldier.  The requirement to serve the last 8 years in an RC was later amended to the last 6 years on 30 September 2002 and was reduced to 0 years on 25 April 2005.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be issued a 15-year letter in order to be eligible to receive nonregular retired pay at age 60.

2.  By law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for nonregular retirement.  However, a member of the Selected Reserve who is medically disqualified for continued service in the RC may be considered as having met the service requirement and may be issued a notification of eligibility if the member completed at least 15 years, but less than 20 years, of qualifying service for nonregular retirement purposes and served the last 8 years of his or her qualifying service as an RC Soldier.

3.  The evidence of record confirms the applicant completed a total of 15 years, 1 month, and 13 days of qualifying service toward nonregular retirement at the time he was discharged for medical unfitness.  However, he did not serve the last 8 or 6 years of his qualifying service as an RC Soldier.  Therefore, he is not entitled to relief in this case.

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)                                         AR20090017255



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ABCMR Record of Proceedings (cont)                                         AR20110005540



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