IN THE CASE OF: 

		BOARD DATE:	    6 December 2012

		DOCKET NUMBER:  AR20120002887 


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 correction of his records to show he was retired early due to medical conditions and payment of all back pay and allowances as a result of this correction.  In effect, he is requesting correction of his records to show he qualified for early non-Regular retirement at age 60.

2.  The applicant states he was found medically unfit for retention and was discharged by the Puerto Rico Army National Guard (PRARNG) for medical reasons.  However, he believes that medical proceedings should have taken place.  He contends he was never informed nor did he receive the results of the medical proceedings and there is no proof that medical proceedings took place.  He states he only received his discharge through the mail, no separation orders were attached, and he had over 18 years of service at the time.  He asked for a medical retirement, but it was denied because The Adjutant General's office could only account for 8 years of service.  He then filed an appeal with the Inspector General's (IG) office but received the same answer.  He also contacted a retirement services officer for assistance only to come to another dead end.

3.  The applicant states the chain of command could not give him any answers or explain why his records were missing and all they did was tell him to keep trying. 
The personnel office could not find any of his records from 1977 through 1992 so not enough service for retirement could be proven.  He continues that somehow someone had the information because he received a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) that shows he had over 22 years of service for pay.  He adds that he had given up until recently when he made one last attempt and, to his surprise and almost 19 years to the date of his discharge, he received an NGB Form 23C (ARNG Retirement Points History Statement) that accounts for his years of service.  He concludes that in accordance with Title 10, U.S. Code, section 12731b, he should be treated as meeting the service requirement for retirement.  His request is based on an injustice due to an imperfect system and the lack of effort and inefficiency of staff members of the PRARNG.

4.  The applicant provides an NGB Form 23C, NGB Form 22, and a letter from the PRARNG IG.

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 NGB Form 23C shows his service as follows:

* ARNG from 30 March 1952 to 29 March 1955
* U.S. Army Reserve (USAR) Control Group (Annual Training) from 30 March 1955 to 29 March 1957
* Regular Army from 23 July 1957 to 23 April 1959
* USAR Control Group (Reinforcement) from 24 April 1959 to 29 March 1960
* ARNG from 25 June 1977 to 31 March 1992

3.  His NGB Form 23C also shows he performed 17 years, 9 months, and 1 day of creditable service for retired pay.

4.  His military records for the period 25 June 1977 to 31 March 1992, which includes his separation proceedings, are not available for review.

5.  His NGB Form 22 indicates he was honorably discharged in the rank of staff sergeant/E-6 on 31 March 1992 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26y, due to being medically unfit for retention.  This form also shows his total service for pay as 22 years, 9 months, and 4 days.

6.  He provided a letter from the PRARNG IG, dated 8 October 1992, in which he was informed that his separation orders indicated he was separated due to not meeting medical retention standards and that his retirement points history only showed 8 years of creditable service for retirement.  He was advised to contact a retirement services officer for further assistance.

7.  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.

8.  Public Law 103-337, dated 5 October 1994, established early Reserve retirement eligibility for Soldiers involuntarily separated from the Selected Reserve due to physical disability during the period 5 October 1994 through 30 September 1999.  Eligibility is based on a minimum of 15 years of qualifying service toward Reserve Component retirement.  Title 10, U.S. Code, section 12731a(a)(1), was amended to extend the early Reserve retirement eligibility for disabled members to the period beginning 23 October 1992 and ending 1 October 1999 to Selected Reserve Soldiers who attained 15 years of retirement eligibility as of 1 October 1991.

9.  National Guard Regulation 600-200 prescribes the criteria, policies, processes, procedures, and responsibilities to classify, assign, utilize, transfer within and between states, and separate ARNG enlisted Soldiers.  Chapter 8 provides for separation of enlisted Soldiers.  Paragraph 8-26y of the version in effect at the time provided for the discharge from State ARNG and/or Reserve of the Army of Soldiers medically unfit for retention standards of Army Regulation 
40-501 (Standards of Medical Fitness), chapter 3.  It also stated that if a commander suspected a Soldier might not be medically qualified for retention, he or she would direct the Soldier to present himself or herself for a medical examination.  A complete medical examination would be accomplished and the results forwarded to the unit commander for disposition.  If retention was not recommended, a request for discharge would be submitted to the State Adjutant General.


DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was discharged on 31 March 1992 for failure to meet medical retention standards and that he had attained over 17 years of creditable service for retired pay at the time of his separation.  However, in order to qualify for an early Reserve retirement, the separation must have occurred on or after 23 October 1992.

2.  Based on the fact that he was separated prior to 23 October 1992, the effective date of the law authorizing early Reserve retirement due to being medically unfit for retention, he is not eligible for an early Reserve retirement.

3.  Regrettably, based on the foregoing there is no basis to grant 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)                                         AR20120002887



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ABCMR Record of Proceedings (cont)                                         AR20120002887



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