IN THE CASE OF:  

		BOARD DATE:  7 June 2012

		DOCKET NUMBER:  AR20110010661 


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

2.  The applicant states she is requesting a 15 to 18-year letter from the Army National Guard (ARNG).  

3.  The applicant provides:

* Orders 194-887, issued by the State of North Carolina, Office of the Adjutant General, dated 13 July 2005
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), as amended, for the period ending 3 November 2004
* NGB Form 22A (Correction to NGB Form 22), dated 31 March 2011
* Correspondence to her Member of Congress (MOC) from the North Carolina ARNG (NCARNG), dated 7 April 2011
* Correspondence to her from her MOC, dated 22 April 2011
* DA Form 199 (Physical Evaluation Board Proceedings), dated 31 August 2004

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.  Following Regular Army and U.S. Army Reserve (USAR) service, the applicant enlisted in the NCARNG on 20 April 1999.  She held military occupational specialty (MOS) 92A (automated logistics specialist).  She last served on active duty from 1 October 2003 through 3 November 2004.

3.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 3 November 2004 shows in:

	a.  item 12c (Net Active Service this Period):  1 year, 1 month, and 3 days; 

	b.  item 12d (Total Prior Active Service):  7 years, 9 months, and 12 days;

	c.  item 12e (Total Prior Inactive Service ):  9 years, 4 months, and 21 days; and

	d.  item 28 (Narrative Reason for Separation):  Disability, Severance Pay.

4.  Her NGB Form 22, as amended by an NGB Form 22A, shows she was honorably discharged on 3 November 2004 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-36y, as a result of discharge from the Reserve of the Army.  The NGB Form 22A shows in item 10e (Total Service for Retired Pay) the amended entry of 12 years, 7 months, and 20 days.

5.  The applicant provided a copy of a DA Form 199, dated 7 September 2004, showing a physical evaluation board (PEB) found her physically unfit and recommended a combined rating of 10% and separation with severance pay, if otherwise qualified.  The form shows she did not concur and demanded a formal hearing with personal appearance.  There is no available evidence showing whether or not a formal hearing proceeded.

6.  During the processing of this case, on 26 April 2012, an advisory opinion was obtained from the NGB.  The advisory official recommended disapproval of the applicant's request.  The official stated:

	a.  The applicant was separated from active duty at the Warrior Transition Unit (WTU), Fort Bragg, NC.  She was processed by the PEB and found to be physically unfit for retention.  Her DD Form 214 shows the reason for separation was disability, severance pay.

	b.  The applicant's NGB Form 22 shows she had 13 years and 6 months of total service for retired pay and 18 years and 7 months of total service (NGB Form 22A amended her service to show 12 years, 7 months, and 20 days of total service for retired pay).  The applicant is not entitled to non-regular retirement benefits.  In accordance with Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service), paragraph 2-1b(2), in order for a Soldier to be eligible they must "... not have elected to receive disability severance pay in lieu of retired pay at age 60.  Reserve personnel involuntarily relieved from active duty who are not eligible for retired pay at time of release, but who are paid readjustment pay under the provisions of Title 10, U.S. Code 687, are eligible to receive retired pay under this regulation provided they are otherwise qualified at a later date."

	c.  The ARNG is now issuing notices of eligibility (NOE) for 15 years total service for retired pay for medical separation (unless through misconduct), regardless of military or civilian connection.  If a Soldier is found no longer medically fit for retention in the military and they have between 15 but less than 20 years total service for retired pay, they are issued the NOE.

	d.  Unfortunately, this applicant does not meet the 15 years of total service for retired pay.  She is not eligible for non-regular retirement.  The State concurs with this recommendation.

7.  On 26 April 2012, the applicant was provided with a copy of the advisory opinion for information and to allow her the opportunity to submit comments or a rebuttal.  On 1 May 2012, she responded with a rebuttal.  She states that while she was being processed by the PEB and found physically unfit for retention in the ARNG, she was never approached with the option of being entitled to receive retirement benefits at age 60.  If she had a choice she would most certainly have chosen that option in lieu of receiving disability severance pay.

8.  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.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  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 an NOE 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.

2.  The applicant did not complete 15 years of total service for retired pay; therefore, she is not eligible for non-regular retirement.  She did not have the option of choosing retirement benefits at age 60 in lieu of disability severance pay.

3.  In view of the foregoing, there is an insufficient evidentiary 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 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)                                         AR20110010661



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