IN THE CASE OF:	  

		BOARD DATE:	  27 March 2012

		DOCKET NUMBER:  AR20110010374 


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 the issuance of a 15-year letter of eligibility for 
non-Regular retirement at age 60.

2.  The applicant states he was honorably discharged from the Army National Guard (ARNG) for medical reasons and received no benefits.  He could have completed his duties as a sergeant first class (SFC)/E-7, but he did not get the opportunity to do so. 

3.  The applicant provides:

* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Honorable Discharge Certificate
* DA Form 2-1 (Personnel Qualification Record)
* Orders 091-137 (discharge from the ARNG)
* ARNG Retirement Points History Statement
* 1987 and 1991 Standard Forms 88 (Report of Medical Examination)
* 1987 medical treatment records 

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 16 August 1961.

2.  He enlisted in the Utah ARNG (UTARNG) on 27 October 1978 and he held military occupational specialty 63C (Track Vehicle Mechanic).  He served through multiple extensions in the ARNG in a variety of stateside assignments and he attained the rank/grade of SFC/E-7.

3.  He underwent a periodic physical examination on 11 April 1987 and he was found medically qualified for reenlistment or retention.

4.  He was treated for ear pain at a Utah treatment facility.  He was also treated at the same facility on 23 January 1989 for blisters on his left foot.

5.  He underwent a retention physical examination on 10 June 1991 and he was again found medically qualified for retention.

6.  The complete facts and circumstances surrounding his medical discharge from the ARNG are not available for review with this case.  However, on 16 May 1994 the UTARNG published Orders 091-137 honorably discharging him from the ARNG effective 16 May 1994 in accordance with paragraph 8-26y of National Guard Regulation 600-200 (Enlisted Personnel Management) by reason of being medically unfit for retention standards.

7.  His NGB Form 22 also shows he was discharged on 16 May 1994 under the provisions of paragraph 8-26y of National Guard Regulation 600-200 for being medically unfit for retention.  This form shows he completed 15 qualifying years toward non-Regular retirement.

8.  An advisory opinion was obtained on 7 February 2012 from NGB.  An official recommended disapproval of the applicant's request.  The official stated:

* the law to allow the 15-year retirement went into effect in October 1999; the applicant retired (sic) in 1994 prior to the law going into effect
* the last medical report submitted by the applicant is dated 1991 and found him fully qualified for retention
* although he was discharged for being medically unfit for retention, there is insufficient information to support his contention that he was qualified for a medical retirement

9.  The applicant was provided with a copy of this advisory opinion, but he did not respond.

10.  The applicant will reach age 60 on 16 August 2021.

11.  Title 10, U.S. Code, section 12731, provides the legal age and service requirements for non-Regular 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, and is not entitled to retired pay from an Armed Force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve under any other provision of law.

12.  Title 10, U.S. Code, section 12731b, effective 5 October 1999, 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 with notification required if the member completed at least 15 years but less than 20 years of qualifying service for retirement purposes.  This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC.

13.  National Guard Regulation 600-200 prescribes the criteria, policies, processes, procedures, and responsibilities to classify, assign, utilize, transfer within and between states, and separate ARNG enlisted Soldiers.  Chapter 8 provides for separation of enlisted Soldiers.  Paragraph 8-26y of the version in effect at the time provided for the discharge from State ARNG and/or Reserve of the Army of Soldiers medically unfit for retention standards of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).  It also stated that if a commander suspected a Soldier might not be medically qualified for retention, he or she would direct the Soldier to present himself or herself for a medical examination.  A complete medical examination would be accomplished and the results forwarded to the unit commander for disposition.  If retention was not recommended, a request for discharge would be submitted to the State Adjutant General.

DISCUSSION AND CONCLUSIONS:

1.  The complete facts and circumstances surrounding his medical discharge from the ARNG are not available for review with this case.  However, on 16 May 1994, the UTARNG published orders honorably discharging him from the ARNG in accordance with paragraph 8-26y of National Guard Regulation 600-200 by reason of being medically unfit for retention.

2.  By law, RC members are required to complete 20 years of qualifying service to be eligible for non-Regular retirement.  However, effective 8 October 1999, a member of the Selected Reserve of an RC who is medically disqualified for continued service in an RC may be considered as having met the service requirement and may be issued a Notification for Eligibility for Non-Regular Retired Pay at Age 60 (15-year letter) if the member completed at least 15 years but less than 20 years of qualifying service for non-Regular retirement purposes. 
In this case, the applicant was discharged in 1994 prior to the effective date of the law.

3.  In view of the foregoing, there is insufficient evidence to support his 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 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)                                         AR20110010374



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ABCMR Record of Proceedings (cont)                                         AR20110010374



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