BOARD DATE: 10 November 2011
DOCKET NUMBER: AR20110009525
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, his military records be corrected to show he completed 20 years of service for a Reserve Component retirement.
2. The applicant states:
* He fully served his country for 20 years
* He was sent home from the hospital after three operations caused by a military accident
* While on convalescent leave he was notified by mail that he was released from duty
* He was not allowed to complete 20 years
* He was given severance pay
3. The applicant provides a memorandum, dated 1 April 2011, from the Texas Army National Guard (TXARNG).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. Having prior active service in the Regular Army, the applicant enlisted in the TXARNG on 23 October 1974. On 7 December 1990, he was ordered to active duty in support of Operation Desert Shield/Storm.
3. On 2 May 1991, a Medical Evaluation Board (MEB) diagnosed the applicant with Post Traumatic Stress Disorder (PTSD), chronic dermatitis, and a right eye condition. The MEB recommended referral to a Physical Evaluation Board (PEB).
4. On 16 May 1991, an informal PEB found the applicant physically unfit due to PTSD. The PEB recommended his separation from the Army with severance pay (10 percent). On 16 July 1991, he concurred with the findings and waived a formal hearing.
5. On 23 August 1991, the U.S. Army Physical Disability Agency approved the PEBs findings and recommendation.
6. He was honorably discharged from active duty on 12 September 1991 under the provisions of Army Regulation 635-40, paragraph 4-24b(3), for physical disability with severance pay.
7. He was honorably discharged from the TXARNG on 12 September 1991 under the provisions of National Guard Regulation 600-200, paragraph 8-26y, for being medically unfit for retention standards.
8. His ARNG Retirement Points History Statement, prepared on 18 November 1991, shows he had 19 years, 10 months, and 18 days of qualifying service for retired pay.
9. Paragraph 1-4(a) (Retired pay) of Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states that retired pay is pay granted Soldiers and former Reserve Components Soldiers under Title 10, U.S. Code, section 1331 (at the time), after completion of 20 or more years of qualifying service and upon attaining age 60.
10. Sections 12731 through 12740 of Title 10, U. S. Code, currently authorize retired pay for Reserve Component military service. Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.
11. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The regulation states a Soldier may not be retained or separated solely to increase retirement or separation benefits.
DISCUSSION AND CONCLUSIONS:
1. Evidence shows the applicant concurred with the PEB findings and recommendation for his separation with severance pay on 16 July 1991.
2. Evidence shows he completed 19 years, 10 months, and 18 days of creditable service for non-regular retirement at age 60.
3. Although he contends he was not allowed to complete 20 years, the governing regulation states a Soldier may not be retained to increase retirement benefits.
4. By law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay. Since the applicant did not complete
20 qualifying years of service, there is no basis for granting the applicants 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 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) AR20110009525
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