IN THE CASE OF:	  

		BOARD DATE:  17 July 2012

		DOCKET NUMBER:  AR20110021569 


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 reconsideration of his previous request for correction of his record to show he was separated for medical reasons and transferred to the Retired Reserve.   

2.  He states: 

	a.  He had an operation in 1996 that made his right arm partially impaired.  He talked to his commander, who suggested he transfer to the Individual Ready Reserve (IRR) and take correspondence courses to finish out his enlistment.  He did that until the correspondence courses stopped coming.  He waited for an end-of-course notice so he could start another course and continue accumulating points toward the 20 years required to be eligible for non-regular retirement.  Instead of an end of course notice, he received a cancellation notice.  He contacted his IRR counselor, but the counselor was unable help him.  

	b.  When his enlistment ended, he was denied reenlistment for medical reasons.  When he was denied reenlistment, he was not counseled on his options.  He later learned it was possible to be eligible for retired pay with 15 years of qualifying service.  Had he been counseled at the time, he would have requested that option. 

3.  He provides pages from the Army National Guard Information Guide on Non-Regular Retirement.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100024869, on 5 May 2011.

2.  The applicant has submitted a new argument which was not previously considered by the Board.  The new argument warrants consideration at this time.

3.  His complete military records are not available for review.  This case is being considered using records he provided in support of his previous application and his ARPC Form 249-E (Chronological Statement of Retirement Points).  

4.  On 22 January 1980, with prior service in the U.S. Air Force and U.S. Marine Corps Reserve, he enlisted in the U.S. Army Reserve (USAR).  

5.  Orders 37-5, issued by Headquarters, 76th Division (Training), West Hartford, CT, dated 21 March 1994, show he was relieved from the orders-issuing headquarters and assigned to the USAR Control Group (Reinforcement) (also known as the IRR) effective 30 March 1994.  The orders also show the reason for his reassignment as "Cogent Personal Reasons (Voluntary)" and the authority as Army Regulation 140-10 (Army Reserve - Assignments, Attachments, Details, and Transfers).  

6.  His ARPC Form 249-E indicates he served as a member of the Selected Reserve (SELRES) from the date he enlisted in the USAR until he was reassigned to the IRR.  This document shows that at the end of his retirement year ending (RYE) 21 January 1995, he had completed 18 years, 11 months, and 29 days of service qualifying for retirement. 

7.  His ARPC Form 249-E shows he earned points for his service after 21 January 1995 as follows.

RYE
Points

Inactive Duty
Extension Course
Membership
Active Duty
Total
21 Jan 96
0
0
15
0
15
21 Jan 97
0
30
15
0
45
21 Jan 98
0
21
15
0
36
21 Jan 99
0
0
15
0
15
7 Jul 99
0
0
7
0
7
8.  He provides a Standard Form 88 (Report of Medical Examination) that shows, on 4 April 1998, while a member of the IRR, he underwent a periodical medical examination.  The examining physician found he was not qualified for retention. 

9.  He provides a memorandum, dated 8 December 1998, from the Command Surgeon, USAR Personnel Command (AR-PERSCOM), St. Louis, MO, notifying him a review of his Army medical records found he did not meet standards for retention in the USAR due to vascular disease and range of motion of his shoulder in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  He was informed that he had to select discharge from the USAR, transfer to the Retired Reserve, or a fitness for duty evaluation.  The memorandum stated that failure to respond by 8 February 1999 would result in his automatic discharge.  The available records do not show that he responded.  

10.  He provides Orders D-07-948441, issued by USARPC, dated 7 July 1999, honorably discharging him from the USAR effective the date of the orders under the authority of Army Regulation 135-178 (Army National Guard and Army Reserve - Separation of Enlisted Personnel).  

11.  Army Regulation 140-10 provides policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.

	a.  The version in effect at the time authorized voluntary reassignment of a troop program unit (TPU) Soldier to an appropriate control group of the IRR for cogent personal reasons.  However, for a TPU Soldier this required an exception to policy approved by the commander of the appropriate major U.S. Army command.

	b.  The regulation provides that Soldiers must request transfer to the Retired Reserve.  It states, in part, that Soldiers who are eligible for transfer include those who are medically disqualified for retention in an active status or entry on active duty, not as a result of their own misconduct, regardless of the total years of service completed.

	c.  The regulation states the SELRES consists of Soldiers assigned to TPUs, the USAR Control Group (Individual Mobilization Augmentee), and the USAR Control Group (Active Guard Reserve).

12.  Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the USAR.  The version in effect at the time stated separation would be accomplished when it had been determined that an enlisted Soldier was no longer qualified for retention by reason of medical unfitness unless the Soldier requested and was granted a waiver under Army Regulation 40-501 or was eligible for transfer to the Retired Reserve under the provisions of Army Regulation 140-10.

13.  Title 10, U.S. Code, Section 12731 provides the age and service requirements necessary to qualify for retired pay at age 60.  It states individuals are eligible to receive retired pay at age 60 upon application if they have completed 20 or more years of qualifying service while a member of a Reserve Component.  

14.  Title 10, U.S. Code, section 12731b (Special rule for members with physical disabilities not incurred in line of duty), states:

	a.  In the case of a member of the Selected Reserve of a Reserve Component 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 purposes of section 12731 of this title, determine to treat the member as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member has completed at least 15, and less than 20 years of service computed under section 12732 of this title.

	b.  Notification under subsection (a) may not be made if the disability was the result of the member’s intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention established by the Secretary concerned; or the disability was incurred during a period of unauthorized absence.

15.  Army Regulation 135-180 (Qualifying Service for Retired Pay - Nonregular Service) implements statutory authorities governing the granting of retired pay to Soldiers and former Reserve Component Soldiers.  It states that, after 30 June 1949, a Reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  Only Soldiers assigned to an active status in a Reserve Component or individuals in active Federal service are authorized to earn retirement point credits.  When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service.

16.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized.  Table 2-1 lists rules governing the award of retirement points for inactive duty training.  The table shows a member of the IRR may earn retirement points as follows:
Service Eligible for Points
Points Authorized
Attend 2-hour unit training assemblies in a nonpay status
One point for each 2-hour period with a maximum of 1 point per calendar day
Complete Army correspondence courses
One point for each 3 credit hours satisfactorily completed
Prepare or give instruction for a training assembly
For presentation:  one point for 2 hours with a maximum of one point per calendar day

For preparation:  one point for each 2 hour or greater period (award of a second point in the same day with additional hours to bring the day’s total to a minimum of 8) with a maximum of 2 points in 1 calendar day
Perform qualifying Civil Defense duties
One point for a minimum of 2 consecutive hours of training (two points per day based on 8 hours of training) with a maximum of 3 points per week, 6 points per month, and 13 points per quarter
Recruit new Soldiers for enlistment in TPU 
One point for recruiting each new enlistee
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that, while serving as a member of the SELRES, the applicant voluntarily requested transfer to the IRR on the basis of cogent personal reasons.  His request was approved, and he was transferred to the IRR effective 30 March 1994.  There is no official documentation showing the cogent personal reasons that prompted this voluntary transfer.  

2.  He states an operation in 1996 partially impaired his right arm, and his commander suggested he transfer to the IRR and take correspondence courses to finish out his enlistment.  Based on the available records, it appears this happened earlier than 1996.  Regardless of when he underwent the operation, there is no evidence showing he was medically disqualified for retention in 1994, the year he voluntarily transferred out of the SELRES to the IRR.  

3.  On 8 December 1998, he was notified he did not meet medical standards for retention due to vascular disease and range of motion of his shoulder.  He was given the opportunity to elect discharge from the USAR, transfer to the Retired Reserve, or a fitness for duty evaluation.  He was notified that failure to reply would result in his automatic discharge.  It appears he did not reply, and, on 7 July 1999, he was discharged from the USAR.  

4.  When he was discharged, he was not a member of the SELRES.  Therefore, the law authorizing early qualification for retired pay did not apply to him.  

5.  As a member of the IRR seeking to earn sufficient points to reach 20 years of service qualifying for retirement, it was his responsibility to pursue those points.  

6.  In the 4 years following his RYE 21 January 1995 (the retirement year during which he transferred to the IRR), he earned, consecutively, 15 points, 45 points, 36 points, and 15 points.  All points in excess of 15 annual membership points were earned solely through correspondence courses.  It should have been apparent that he was going to have to do more than take correspondence courses to achieve his goal, but he did not use any of the other points-earning options available to him.  

7.  The available records do not show evidence of inequity or injustice in the applicant's transfer to the IRR or his subsequent discharge from the USAR.  In the absence of such evidence, there is no basis for granting the relief he has requested.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20100024869, dated 5 May 2011.



      ___________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)                                         AR20110021569





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ABCMR Record of Proceedings (cont)                                         AR20110021569



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