IN THE CASE OF:	

		BOARD DATE:	  2 August 2012

		DOCKET NUMBER:  AR20110020760 


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 medical retirement from the Army National Guard (ARNG). 

2.  The applicant states at the time of his medical discharge, his National Guard Bureau (NGB) Form 23B (ARNG Retirement Points History Statement) was incorrect and did not reflect completion of 15 qualifying years of service toward non-regular retirement.  He was medically separated but not retired.  He had served in three branches of service and his records have since been recalculated and corrected. 

3.  The applicant provides:

* Orders 251-018 (medical discharge from the ARNG)
* Old and new NGB Forms 23B
* Medical documents

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 19 January 1976.  Having had prior service in the U.S. Air Force (USAF), he enlisted in the Colorado ARNG (COARNG) on 27 December 2006.  He was assigned to the 169th Fires Battalion, Aurora, CO.

2.  On 17 April 2011, a medical duty review board (MDRB) was conducted to consider the applicant's medical condition(s) of bilateral knee pain (arthritis, severe), Bells Palsy, and severe gout.  The MDRB found the applicant was:

* Medically disqualified in accordance with chapter 3 of Army Regulation  40-501 (Standards of Physical Fitness)
* Non-deployable in any unit of assignment
* Not medically qualified to remain in his military occupational specialty

The MDRB recommended the initiation of separation action.

3.  On 17 May 2011, he acknowledged receipt of the MDRB findings and recommendation.  He indicated understood he could be separated from the COARNG due to his medical condition.  He also indicated he did not desire to submit an appeal of the MDRB's findings.

4.  On 10 July 2011, by memorandum, an official at the COARNG G-1 notified the applicant's commander that the applicant did not meet retention standards and as such, he would be discharged.

5.  On 8 September 2011, the COARNG published Orders 251-018 ordering the applicant's discharge from the ARNG and as a Reserve of the Army in accordance with paragraph 6-35(i)(8) of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), effective 1 September 2011.

6.  His NGB Form 23B, dated 27 July 2011, shows he had completed 13 years,   9 months, and 15 days of qualifying service toward non-regular retirement.  

7.  His NGB Form 22 (Report of Separation and Record of Service) also shows he was discharged from the ARNG and as a Reserve of the Army on                   1 September 2011 under the provisions of paragraph 6-35(i)(8) of NGR 600-200 for being medically unfit for retention.  This form shows he completed 14 years,   5 months, and 20 days of total service for pay.

8.  His NGB Form 23B was reviewed and corrected to show 15 years, 5 months, and 20 days of qualifying service as of 13 October 2010. 

9.  An advisory opinion was obtained on 5 July 2012 from NGB.  An official recommended approval of the applicant's request.   The official stated:

	a.  The applicant states that at the time of his discharge the Retirement Points Accounting Management system did not reflect his 15 years of qualifying service for retired pay.  The error was discovered by the Medical Board during the process of medically retiring the Soldier.   The missing points came from his time in the USAF.  He had to request his records from the USAF, but did not receive them until he had been medically retired from COARNG.  Upon receipt of the records, the RPAM system was updated and corrections were made in order to reflect his 15 years, 5 months, and 20 days of qualifying service. 

	b.  Additionally, in a memorandum from the COARNG, dated 29 November 2011, as a result of an administrative error, the Soldier was medically retired and should have been medically separated.  The memorandum references NGR  680-2, paragraph 3-2 (b) which states, "ARNG Soldiers in an active status with at least 15, and fewer than 20, years of qualifying service who are disqualified from continued service due to physical disability and meet all other eligibility criteria may be retired."  When the unit requested the Soldier’s retirement, the RPAM statement available at the time showed 13 years, 9 months, and 15 days of creditable service for retirement, and he was therefore not authorized retirement. The memorandum confirms the applicant did not obtain the necessary documents needed to make the corrections until after he had been discharged.

	c.  As a result, documentation has been provided showing he had over 15 years of qualifying service, the Soldier was eligible to receive a 15 year Notice of Eligibility (NOE) letter upon his discharge.  This is in accordance with guidance provided on the ARNG G1 website, which states in part, "Soldiers who cannot continue in service due to medical disqualification (those injured, ill or diseased, or who aggravate an existing medical condition and those disqualified from continued service by a medical disability) who are not retired per chapter 61 of Title 10, U.S. Code and individuals who are disabled per section 12731b of Title 10, U.S. Code, may be issued a 15 year NOE."

	d.  The information provided on the G1 website goes on to say, "The RPAM 
Administrators may issue 15 Year NOEs to Soldiers who no longer meet the qualifications for membership in the Selected Reserve solely because they are unfit for physical disability, whose disability was not the result of their intentional misconduct, willful neglect, or willful failure to comply with standards for retention, was not incurred during a period of unauthorized absence, and who have served at least 15 years, but less than 20 years of qualifying years of service, and meet all other eligibility criteria.  The 15 Year NOE is issued manually by the RPAM Administrator when competent medical authority (usually State Surgeon or a medical board) provides written notice of the disqualification, and only when separation (retirement and transfer, or discharge) orders are issued.  

	e.   ARNG Soldiers who receive their 15 Year NOEs have only two options available in paragraphs 3-6 (a) (2) and (a) (4) above because they are disqualified from further service, and their 15 Year NOEs are issued only when separation orders are issued.  Section 3-6a (2), states, "Request discharge from the ARNG and transfer to the Retired Reserve to await eligibility for retired pay (age 60 or reduced eligibility age)."  Section 3-6 (a) (4), states, "Request discharge from the ARNG and as a Reserve of the Army.  This removes the potential for recall to active status and possibly, active duty, but severs the ties that provide information, notifications of changes in benefits and other programs. Importantly, there will not be any kind of notification notice of the requirement to submit an application for retired pay from the U.S. Army Human Resources Command (HRC), as the Soldier approaches age 60.  These former Soldiers should contact HRC or the MPMO/G-1 of the state in which they served before being separated to civilian life in order to request assistance."  Note: "Regardless of the option chosen, the member is entitled to receive retired pay at age 60, or earlier if qualified under the reduced eligibility age, but must apply for it."

	f.  The State concurs with this recommendation.    

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

11.  The applicant will reach age 60 on 19 January 2036.

12.  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.

13.  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.  The applicant completed at least 15 years but less than 20 qualifying years of service for non-regular retirement at the time he was medically disqualified for retention in the ARNG.  However, his NGB Form 23B was not updated at the time.  Accordingly, he was honorably discharged in accordance with paragraph 6-35 of NGB 600-200 by reason of being medically unfit for retention.  

2.  Once his NGB Form 23B was updated to reflect the correct number of qualifying years of service toward non-regular retirement, it became clear that he should have been issued a Notification of Eligibility for Retired Pay at Age 60.  

3.  By law, RC members are required to complete 20 years of qualifying service to be eligible for non-Regular retirement.  However, a member of the Selected Reserve 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 met the criteria.  

4.  Therefore, he should be issued a 15-year letter and be provided an opportunity to enroll in the Reserve Component Survivor Benefit Plan. 

BOARD VOTE:

____X____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* Issuing the applicant a Notification of Eligibility for Retired Pay at Age 60, (15-year letter)

* Showing he was transferred to the Retired Reserve on 1 September 2011
* Providing the applicant with the necessary information regarding enrollment in the Reserve Component Survivor Benefit Plan



      _______ _   _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)                                         AR20110020760



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ABCMR Record of Proceedings (cont)                                         AR20110020760



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