IN THE CASE OF:	  

		BOARD DATE:	  4 October 2012

		DOCKET NUMBER:  AR20120004514 


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, additional retirement points to make retirement year ending (RYE) 21 September 1998 a qualifying year for retirement.

2.  The applicant states:

	a.  during the 1997/1998 service year he did not have the required points to receive a creditable year of service.  This occurred because of his mother's death and tornado disaster relief work.

	b.  he missed 15 years of service by 6 months.

	c.  in applying for a 15-year reduced Army pension recently, records show he was 6 months short of having the required 15 years.  He was unable to obtain the 20 years necessary for a normal pension because he became disabled while on active duty in 2003. 

	d.  the service year 1997/1998 indicates he did not have enough points for a creditable year.  After reviewing his records he found out on 8 April 1998 he volunteered to help, along with his unit, in tornado relief for 20 days.  In doing so, he used up his personal vacation time from his civilian job.  His vacation time was what allowed him to attend 2 weeks annual training each year (his employer did not allow pay for military leave).  Therefore, his job would not have allowed him to be off an additional 2 weeks.

	e.  from 1970 to 1976 he served honorably in the Air Force Reserve while attending college and later the Army National Guard (ARNG).

	f.  in 1994 he joined the ARNG again in hopes of obtaining 20 years of service necessary for a pension.  

	g.  in January 2003 his unit was called to active duty.  Unlike over 30% of his unit who found excuses not to go, he chose to serve in a war that he believed in.  His military pay was 1/3 the amount his civilian job paid, yet his wife and he both agreed that he should go.

	h.  during his second enlistment his civilian jobs were very demanding and he could not take advantage of attending military schools to achieve rank.  Knowing the disadvantages of active duty life as a specialist he nonetheless chose to serve on active duty.    

3.  The applicant provides:

* DA Form 638 (Recommendation for Award)
* Roster of personnel who participated in disaster relief efforts for the 1998 Jefferson County tornado
* Letter of commendation
* Résumé
* Undated letter from the U.S. Army Human Resources Command, Fort Knox, KY
* Application for retired pay benefits
* DD Form 2656 (Data for Payment of Retired Personnel)
* National Guard Bureau Form 22 (Report of Separation and Record of Service)
* ARNG Retirement Points History Statement
* Discharge orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 April 2004
* Honorable Discharge Certificate, dated 16 April 2004
* Letter, dated 6 December 2004, from the Department of Veterans

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 20 July 1952.  After having had prior enlisted service in the U.S. Air Force Reserve and ARNG, he enlisted in the ARNG on 
22 September 1994.  He served in Germany from 6 March 2003 to 27 September 2003.  He was ordered to active duty on 3 January 2004 in support of Operation Enduring Freedom.  

3.  His Medical Evaluation Board (MEB) is not available.  On 9 February 2004, a Physical Evaluation Board (PEB) found him physically unfit due to chronic left neck pain, degenerative disk disease of cervical spine, combined cervical range of motion 325 degrees, without neurological abnormality.  The PEB recommended a combined 10% disability rating percentage and separation from the service with severance pay.  On 10 February 2004, the applicant concurred with the findings and recommendations and waived a formal hearing.  
 
4.  On 15 April 2004, he was honorably discharged by reason of physical disability (severance pay). 

5.  On 16 April 2004, he was honorably discharged from the ARNG for being medically unfit for retention.  

6.  His ARNG Retirement Points History Statement, dated 24 March 2005, shows he had 14 years, 6 months, and 25 days of qualifying service for retirement.

7.  His application for retired pay was denied because he had not completed 20 qualifying years of Reserve service.

8.  Title 10, U.S. Code, section 1209 states any member of the armed forces who has at least 20 years of service (for a reserve retirement) and who would be qualified for disability retirement but for the fact that his disability is less than 
30 percent may elect, instead of being separated, to be transferred to the inactive status list under section 12735 of this title and, if otherwise eligible, to receive (reserve) retired pay upon becoming 60 years of age.



9.  Title 10, U.S. Code, 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 proved with the notification required if he/she has completed at least 15 and less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  At the time of the applicant's discharge he had completed 14 years, 6 months, and 25 days of creditable service for retired pay.

2.  Although the applicant contends he missed 15 years of service by 6 months 
(it appears he means to be eligible for a 15-year letter), in accordance with Title 10, U.S. Code, Section 12731b, he would only be eligible for a 15-year letter if his unfitting condition was non-duty related.   

3.  He was separated for disability with a rating of less than 30%.  He was seen by an MEB/PEB which means his condition was duty-related.  He is not eligible for a 15-year letter and in accordance with Title 10 U.S. Code, Section 1209 he could only request Reserve retirement in lieu of severance pay if he had completed 20 years of qualifying service.  

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20120004514





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ABCMR Record of Proceedings (cont)                                         AR20120004514



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