IN THE CASE OF:	  

		BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20110020386 


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, that his records be corrected to show that he was discharged from the Mississippi Army National Guard (MSARNG) due to permanent disability and was transferred to the Retired Reserve and issued a  15-year letter. 

2.  The applicant states, in effect, that after serving over 17 years of service he was discharged from the MSARNG and the United States Army Reserve and was told that he had been medically discharged.  However, he has been unable to receive his retirement because his records do not reflect that he was medically discharged. 

3.  The applicant provides a copy of a response to his congressional representative from The Adjutant General of the MSARNG regarding his discharge.

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 10 August 1949 and was inducted on 11 June 1969.  He completed his basic training at Fort Bragg, North Carolina and his advanced individual training as a stock control and accounting specialist at Fort Lee, Virginia before being transferred to Vietnam on 10 November 1969.  He served in Vietnam until 29 October 1970 and was transferred to Fort Gordon, Georgia where he remained until he was honorably released from active duty (REFRAD) on 10 June 1971 and was transferred to the United States Army Reserve (USAR) Control Group (Annual Training).  He was honorably discharged from the USAR on 1 June 1975.

3.  On 18 March 1976 he enlisted in the MSARNG for a period of 1 year.  He continued to serve through a series of continuous reenlistments and extensions and was promoted to the pay grade of E-6 on 5 April 1982. 

4.  The facts and circumstances surrounding his administrative discharge are not present in the available records.  However, his records do show that on Wednesday, 3 July 1991 he was admitted to the hospital for injuries sustained when he was trying to erect a utility pole in his back yard and it fell on him crushing his right tibia and causing numerous other injuries to his right leg.  It appears that the applicant suffered complications and numerous surgical procedures and as of 28 September 1993 the treating physician could not determine when the applicant’s injury would heal.

5.  On 12 November 1993 the applicant’s commander submitted a request to the State of Mississippi, Military Department requesting that a Physical Profile Board be conducted on the applicant.

6.  On 7 December 1993 the applicant was honorably discharged from the MSARNG and as a Reserve of the Army due to being medically unfit for retention standards of Chapter 3, of Army Regulation 40-501 and paragraph 8-26Y of National Guard Regulation (NGR) 600-200.

7.  A Retirement Points Summary dated 17 March 1993 shows that the applicant had 17 qualifying years of service for retired pay purposes and his last qualifying year ended on retirement year ending (RYE) 17 March 1990.

8.  The letter provided by the applicant from The Adjutant General of Mississippi to the applicant’s congressional representative indicates that the applicant was discharged for failure to meet retention standards due to a non-duty related impairment.  He went on to state that Soldiers who sustain a physically unfitting disability in the line of duty are eligible to receive medical retirement, disability benefits and severance pay benefits; however, the applicant’s medical issues were not in the line of duty. 

9.  NGR 600-200, paragraph 8-26y provides for the discharge from State Army National Guard and/or Reserve of the Army Soldiers medically unfit for retention standards of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

11.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve Component Soldiers.  Chapter 2 provides eligibility criteria and, in pertinent part, states that in order to qualify for non-regular retirement, a member must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of his or her qualifying service as a Reserve Component Soldier.  Paragraph 2-8 defines qualifying service and states, in pertinent part, that a Reserve Component Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.

12.  Title 10, U.S. Code, section 12731, provides that a non-regular service member is entitled, upon application, to retired pay if the person is at least 60 years of age; has performed at least 20 years of qualifying service; and having completed the service requirement prior to 5 October 1994, shall have performed the last 8 years of qualifying service while a member of a reserve component; or having completed the service requirement during the period beginning on 5 October 1994, shall have performed the last 6 years of qualifying service while a member of a reserve component.

13.  Title 10, U.S. Code, section 12731a, was the temporary special retirement qualification authority.  It provided that, beginning 23 October 1992 (emphasis added) through 30 September 1999 (later extended to 31 December 2001), a member of the Selected Reserve who had completed at least 15 years of qualifying service as of 1 October 1991, or who completed at least 15, but less than 20, years of qualifying service during the period 1 October 1991 through 31 December 2001, could, upon the request of the member, be transferred to the Retired Reserve.  The Secretary concerned could limit the applicability of this section to meet the needs of the Service.  This temporary special provision appeared in the National Defense Authorization Act for Fiscal Year 1993 (NDAA FY93).

14.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U. S. Code by adding section 12731b, (Special rule for members with physical disabilities not incurred in line of duty).  Section 12731b(a) states that a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (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 and less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show that he was notified of his completion of 15 years of qualifying service in a        15-year letter so that he may retire from the U.S. Army Reserve (USAR) at the age of 60.

2.  The temporary special retirement qualification authority (Special rule for members with physical disabilities not incurred in line of duty) is clear in that a member of the Selected Reserve who no longer met the qualifications for membership in the Selected Reserve solely because the member was unfit because of physical disability could, for the purposes of section 12731 of Title 10, U.S. Code, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service.  However, this provision of law did not go into effect until 5 October 1999, almost 6 years after the applicant was discharged.

3.  Unfortunately, the applicant did not qualify for early retirement under the temporary special retirement authority and it appears that he is not entitled to correction of his records in this case.

4.  Therefore, in the absence of evidence to the contrary, it must be presumed that he was properly discharged with no violations of any of his rights.  Accordingly, there is no basis to grant his request for a 15-year 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)                                         AR20110020386





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ABCMR Record of Proceedings (cont)                                         AR20110020386



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