IN THE CASE OF:	  

		BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120007458 


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 removal of the severance pay he received for an injury he incurred in the line of duty.  In effect, he requests issuance of a 15-year letter of eligibility for non-Regular retirement at age 60.

2.  The applicant states the provisions for a 15-year non-Regular retirement did not exist at the time he was discharged.

3.  The applicant provides:

* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DA Form 2139 (Military Pay Voucher)
* physical disability memorandum, endorsement, and orders
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* Honorable Discharge Certificate
* medical documents
* authorization for hospitalization
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* DD Form 689 (Sick Call Slip)
* medical progress notes
* DA Form 4700 (Medical Record – Supplemental Medical Data)
* Standard Form 502 (Medical Record – Chronological Record of Medical Care)
* 
DD Form 214 (Armed Forces of the United States Report of Transfer or 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 19 November 1947.

3.  The available records show he was inducted into the Army of the United States on 4 January 1968 and he held military occupational specialty (MOS) 76Y (Unit Supply Specialist).

4.  He was honorably released from active duty on 22 October 1969 and he was transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining service obligation.  His DD Form 214 shows he completed 1 year, 9 months, and 19 days of creditable active service.

5.  The available records also show he served with the 404th Signal Detachment, a U.S. Army Reserve unit in Mason City, IA, from 1973 to 1976.  He then served with a Reserve artillery unit in Garner, IA, from 1976 to 1978.

6.  The available records further show he enlisted in the Iowa Army National Guard (ARNG) on 23 May 1978 and he held MOS 63B (Light Wheel Power Generation Mechanic).

7.  He appears to have served through multiple extensions in the ARNG in a variety of stateside assignments and he attained the rank/grade of staff sergeant (SSG)/E-6.  He was assigned to the 1133rd Transportation Company, Mason City, IA.

8.  On 3 May 1983 during annual training (30 April to 15 May 1983) and while moving a 5-ton tractor, he slid out of the driver's seat and sprained/strained his hip and thigh.  He was transported to a hospital in Texarkana, TX, where he received medications.  He was seen at a different clinic the following day where he was x-rayed and given crutches.

9.  The applicant gradually developed increased pain over his left groin and left hip region.  He was evaluated on multiple occasions and initially diagnosed as having chronic abductor strain.  His pain persisted and it appears that he was unable to perform his military duties.  His final diagnosis was that of left hip and groin pain, unknown etiology.  He was recommended for entry into the Army Physical Disability Evaluation System (PDES).

10.  On 5 March 1985, a PEB convened in San Francisco, CA.  The PEB found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to chronic left hip and groin pain.  He was rated under the Veterans Administration Schedule for Rating Disabilities, assigned code 8730, and granted a 0-percent disability rating.  The PEB recommended his separation from the service with entitlement to severance pay.  The applicant concurred with the PEB's findings and recommendation and waived his right to a formal hearing.

101.  He was honorably discharged from the ARNG on 2 April 1985.  His NGB Form 22 shows he was discharged under the authority of paragraph 7-10n of National Guard Regulation 600-200 (Enlisted Personnel Management) by reason of "other good and sufficient reasons as determined by the State Adjutant General."

12.  His NGB Form 22 also shows he completed 6 years, 10 months, and 10 days of ARNG service during this period with 8 years, 5 months, and 9 days of prior Reserve Component (RC) service as well as 1 year, 9 months, and 19 days of prior active service for a total of 17 years, 1 month, and 8 days of total service for pay.

13.  On 4 April 1985, the U.S. Army Military Personnel Center, Alexandria, VA, published Orders D61-17 discharging him from the ARNG in the rank/grade of SSG/E-6 effective 2 April 1985 by reason of physical disability with entitlement to severance pay based on 3 years, 3 months, and 26 days of service computed under Title 10, U.S. Code, section 1208.

14.  The computation of his qualifying years of service for retired pay is not available for review.  Neither his Army Reserve Personnel Command 
Form 249-E (Chronological Statement of Retirement Points) nor his NGB Form 23 (ARNG Retirement Points History Statement) could be found.

15.  The applicant reached age 60 on 16 August 2007.

16.  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 reached age 60, has performed at least 20 qualifying 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.  A qualifying year under this system is a year in which the member earns at least 50 retirement points during the retirement year.

17.  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 an 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.

18.  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 the retention standards of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).  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 applicant sustained an injury in line of duty in 1983.  He was seen by various medical specialists and recommended for entry into the PDES.  He appears to have undergone a medical evaluation board which recommended his consideration by a PEB.  The PEB found his medical condition prevented him from performing the duties required of his military specialty and grade.  The PEB recommended his separation with entitlement to severance pay.  He concurred.

2.  By law, RC members are required to complete 20 years of qualifying service to be eligible for non-Regular retirement.  However, effective 8 October 1999, a member of the Selected Reserve of an RC who is medically disqualified for continued service in an RC due to a non-duty related condition 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.

3.  In this case, it is unclear if the applicant had completed 15 qualifying years toward non-Regular retirement.  However, the law to allow the 15-year retirement went into effect in October 1999 and his unfitting condition was duty related, not non-duty related.  The applicant was discharged in 1985 prior to the effective date of the law.

4.  In view of the foregoing, there is insufficient evidence to support his 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 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)                                         AR20120007458



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ABCMR Record of Proceedings (cont)                                         AR20120007458



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