IN THE CASE OF:	  

		BOARD DATE:	    24 April 2012

		DOCKET NUMBER:  AR20110015370 


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 he be granted a non-regular retirement at age 60.  

2.  The applicant states, in effect, he:

* completed 21 years, 5 months, and 4 days of total service for pay
* elected to leave active duty through the Early Release Program-Special Separation Benefit (SSB) 
* still wanted to serve his country but he was unable to complete the last
6 years of service in a Reserve status as required by law because he was found unfit for duty
* served honorably in Germany, Korea, and Honduras
* was a top recruiter and he received multiple awards
* has paid back the money he received in conjunction with the SSB so that he could receive Department of Veterans Affairs payments for service-connected conditions.

3.  The applicant provides copies of the following documents:

* a letter from The Adjutant General (TAG), Wisconsin Army National Guard (WIARNG)
* a letter from the WIARNG Chief of Staff
* ARNG Retirement Points Annual Statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Extract of Title 10, U.S. Code (USC), section 12731

* Extract of Army Regulation 635-200 (Personnel Separation)
* A Supreme Court decision

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's records show he was born on 18 November 1958. 

3.  Having had prior service, he enlisted in the Regular Army (RA) on 9 July 1979 and held a communications military occupational specialty.  He served through a variety of stateside and overseas assignments, including Germany, Honduras, and Korea, and he attained the rank/grade of staff sergeant (SSG)/E-6.

4.  He requested a voluntary discharge under the 1995 Enlisted Early Release Program and he was honorably discharged from active duty on 9 January 1995 with entitlement to an SSB in the amount of $62,664.84.  He completed 18 years and 3 days of creditable active service.  

5.  On 18 April 1995, he executed a 6-year enlistment in the WIARNG.  On
20 April 1996, he was transferred to the Kansas ARNG (KSARNG); however, on 21 November 1996, he was released from the KSARNG and returned to the WIARNG.

6.  On 30 June 1999, he was honorably discharged from the WIARNG in accordance with paragraph 8-26j of National Guard Regulation 600-200 (Enlisted Personnel Management), by reason of being medically unfit.  His ARNG Annual Retirement Points History Statement shows he completed 21 years and 3 days of service for pay; however, he did not have the last 6 years in a Selected Reserve status.


7.  On 15 September 2005, the ABCMR notified him that Title 10, U.S. Code, section 12731 requires a Reservist or a Guardsman to have his or her last 6 or 
8 years (depending on the date) of qualifying service in a Reserve Component in order to be eligible for retired pay for non-regular service.

8.  On 5 June 2007, the ABCMR denied his petition for correction of his records to show he was medically retired.

9.  On 22 July 2008, The ABCMR denied his petition for reconsideration of his earlier request to show he was retired by reason of physical disability.

10.  He provides:

	a.  A letter, dated 10 June 2011, from TAG, WIARNG, who supports his request for a non-regular retirement citing the applicant's medical condition as the reason for non-compliance with the law that required the last 6 years to be in a Reserve Component in order to qualify for non-regular retirement.

	b.  A letter, dated 4 February 2011, from the WIARNG chief of staff states that the applicant dedicated more than two decades in service to the Nation, he was medically discharged due to no fault of his own, and in view of the change in the law in 2005 that eliminated the requirement to have the last 6 years in a Reserve Component status he should be eligible for retired pay at age 60 as an exception to policy.  

	c.  Extract of Title 10, USC, section 12731 that requires the last 6 years of qualifying service as a member of the Reserve Component.

	d.  A U.S. Supreme Court decision, dated 13 November 2002, wherein sex offenders challenged the Alaska Sex Offender Registration Act claiming that it was punitive in nature and thus constituted retroactive punishment in violation of the Ex Post Facto Clause.  Officials argued the Act was non-punitive and that it was enacted to protect the public.

11.  An advisory opinion, dated 12 March 200, obtained from a National Guard Bureau official recommended disapproval of the applicant's request because he was not a member of a Reserve Component during the last 6 years of qualifying service.  Additionally, the official states the applicant references a medical condition; however, this condition was a pre-existing condition that was not aggravated by his ARNG service.   He did not respond to the advisory opinion.


12.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 relates to the removal of Soldiers from an active status and states that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.

13.  Army Regulation 135-180 (ARNG and Army Reserve Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, states 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 a Reserve Component Soldier.  During the period October 1994 to December 2001, the requirement to serve the last 8 years in a Reserve Component was amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero years.  This regulation also specifies, in part, that each Reserve Component Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.

14.  Title 10, USC, section 12731 states, except as provided in subsection (c), a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person has attained the eligibility age applicable under subsection 
(f) to that person; has performed at least 20 years of service computed under section 12732 of this title; and in the case of a person who completed the service requirements of paragraph (2) before April 25, 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 October 5, 1994, the number of years of such qualifying service under this paragraph shall be 8 years; and 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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be authorized retired pay at age 60.

2.  The applicant requested a voluntary discharge under the Fiscal Year 1995 Early Release Program.  He was honorably discharged on 9 January 1995 with entitlement to SSB in the amount of $62,664.84.  He completed 18 years and 
3 days of active service in the RA.

3.  He enlisted in the WIARNG on 18 April 1995.  He was transferred to the KSARNG on 20 April 1996; however, he returned to the WIARNG on 21 November 1996.  He was discharged from the WIARNG on 30 June 1999 by reason of being medically unfit.  He had completed 4 years of qualifying service for non-regular retirement.

4.  The law is clear in that at the time the applicant was discharged in order to qualify for non-regular retirement, in addition to meeting other requirements, the member must have performed the last 6 years of qualifying service as a member of a Reserve Component.  The applicant does not meet this statutory requirement.  As such, he remains ineligible for a non-regular retirement. 

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)                                         AR20110015370



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ABCMR Record of Proceedings (cont)                                         AR20110015370



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