IN THE CASE OF:	  

		BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20110009885 


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 granted a non-regular retirement.

2.  The applicant states he served on active duty from 1968 to 1972 and in the U.S. Army Reserve (USAR) from June 1972 to October 1995, when he was transferred to the Retired Reserve after 26 years for medical reasons.

3.  The applicant provides copies of:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 June 1972
* his academic transcripts and diploma from the Command and General Staff College, dated 22 February 1990
* his annual training orders for the period 25 February-8 March 1991
* his DA Form 67-8 (U.S. Army Officer Evaluation Report) covering the period 25 February-8 March 1991
* his DA Form 705 (Army Physical Fitness Test Scorecard), dated 5 March 1991
* his notification of medical disqualification from the U.S. Army Human Resources Command – St. Louis (AHRC-STL), dated 10 October 1995
* orders from AHRC-STL transferring him to the Retired Reserve, dated 6 December 1995
* his AHRC Form 249-2-E (Chronological Statement of Retirement Points), dated 23 December 2010
* a letter from AHRC-STL, dated 28 December 2010
* a letter from the Department of Veterans Affairs (VA), dated 25 January 2011
* his appeal to AHRC-STL, dated 26 February 2011
* a letter from AHRC-STL, dated 31 March 2011
* documents related to his medical treatment

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 9 September 1948 and he enlisted in the Regular Army on 3 July 1968.  He completed his basic and advanced individual training and Officer Candidate School before he was honorably discharged on 29 June 1969 to accept a USAR commission.

3.  On 30 June 1969, he was commissioned as a USAR second lieutenant with concurrent call to active duty.  He was honorably released from active duty on 29 June 1972 in the rank of captain due to completion of his active duty commitment.  He was transferred to the USAR and served in troop program units and as an Individual Mobilization Augmentee.  He was promoted to the rank of lieutenant colonel on 28 June 1988.

4.  On 10 October 1995, the USAR Personnel Center [subsequently changed to AHRC-STL] notified the applicant that he did not meet the standards for retention in the USAR by reason of intracerebral hemorrhage with residual disability.  He was advised that he must elect either discharge from the USAR, transfer to the Retired Reserve, or request a waiver for retention.  He was further advised that if he elected retirement he would be transferred to the Retired Reserve.  However, as a member of the Retired Reserve he would not be eligible for retired pay or other benefits unless otherwise entitled by law.

5.  Effective 6 December 1995 he was transferred from the USAR Control Group (Reinforcement) to the Retired Reserve.  His chronological statement of retirement points shows that he had not had a qualifying year for retirement since 1990.

6.  The applicant reached 60 years of age on 9 September 2008 and apparently applied for retired pay, because officials at AHRC-STL advised the applicant that he did not have 20 qualifying years of service for retired pay on 28 December 2010.  He was further advised that he had only 13 years of qualifying service and he did not qualify for retired pay.

7.  On 26 February 2011, he appealed the decision to AHRC-STL and provided documents for additional retirement points.

8.  On 31 March 2011, officials at AHRC-STL advised the applicant that he had 18 years and 2 months of creditable service for retirement, but he still did not qualify for retired pay.  He was advised to apply to this Board.

9.  There is no evidence or indication in the available record that shows he was issued a notification of eligibility for retired pay (20-year letter) upon his transfer to the Retired Reserve.

10.  Army Regulation 135-180, Qualifying Service for Retired Pay - Nonregular Service, provides, in pertinent part, that a USAR soldier who completes 20 qualifying years of service is eligible to apply for Retired Pay at age 60, provided that the last 8 years were served in the Reserve Components.  A qualifying year of service is one in which the soldier earns at least 50 points during the established retirement year.  Any points less than 50 do not qualify as a qualifying year for retirement purposes.  A soldier must have 20 years of service in which he earned 50 or more points each retirement year in order to be issued a 20-year letter.

11.  Army Regulation 140-10 (USAR Assignments, Attachments, Details, and Transfers), chapter 6, provides the eligibility criteria for transfer to the Retired Reserve.  It provides that assignment to the Retired Reserve is authorized provided that eligible Soldiers request transfer and have reached the age of 37 and have completed a minimum of 8 years of qualifying Federal service or have reached the age of 37, completed a minimum of 8 years of qualifying Federal service, and served at least 6 months of active duty in a time of war or national emergency.

12.  Title 10 U.S. Code, section 12731a was a temporary special retirement qualification authority.  A revision, dated 5 October 1994, provided that, during the period 1 October 1991 through 31 December 2001 a member of the Selected Reserve who has completed at least 13, and less than 20, years of qualifying service and no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, and upon the request of the member, may be transferred to the Retired Reserve.  Title 10, U.S. Code, section 12731a(a)(1) was amended to extend the Early Reserve Retirement Eligibility for Disabled Members to the period beginning on 23 October 1992 to Soldiers who attained 15 years of retirement eligibility after 1 October 1991.

13.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, USC by adding section 12371b, (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 pay, for the purpose of section 12371 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 years and less than 20 years of service.
   
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be granted a non-regular retirement has been noted and appears to lack merit.

2.  The evidence of record shows that at the time the applicant was transferred to the Retired Reserve due to being medically disqualified, he did not have 20 qualifying years of service and he was not a member of the Selected Reserve that qualified for a 15-year letter.  

3.  Accordingly, there appears to be no basis to grant his request for a            non-regular retirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.



      ____________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)                                         AR20110009885



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ABCMR Record of Proceedings (cont)                                         AR20110009885



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