BOARD DATE:	  9 October 2012

		DOCKET NUMBER:  AR20120008223 


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 record to show he was issued a Notification of Eligibility for Non-Regular Retired Pay at Age 60 (15-Year Letter) and entitlement to retired pay at age 60.

2.  The applicant states:

* He was recently informed that he does not qualify for U.S. Army Reserve (USAR) retirement benefits
* He was placed in the Retired Reserve in July 1988 after 11 years of active service and 1 year of Reserve service
* He was discharged from the USAR due to a medical disqualification and he was initially honorably discharged
* He petitioned this Board and his orders were amended to transfer him to the Retired Reserve
* He is now being told by officials at the U.S. Army Human Resources Command that he is ineligible for retired pay at age 60 because he does not have at least 15 qualifying years of service
* No one informed him about this 15-year rule; he was discharged without outprocessing although he had every intention to continue his service

3.  The applicant provides:

* Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points)
* 
Orders C-05-020471 (attachment orders)
* Notification of Medical Disqualification
* Orders Number D-07-901435 (discharge orders)
* Army Board for Correction of Military Records (ABCMR) Docket Number AC90-08633
* Orders Number D-07-901435R (revocation orders)
* Letter from the Retired Pay Operations, Defense Finance and Accounting Service
* DD Form 1172 (Application for Uniformed Identification Card – Defense Enrollment Eligibility Reporting System Enrollment)
* Orders Number C-05-900023 (transfer to the Retired Reserve)

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he was born on 15 April 1952.

2.  He was appointed as a Reserve commissioned officer and executed an oath of office on 15 July 1975.  He entered active duty on 14 October 1975 and he served in a variety of stateside or overseas assignments.  He was promoted to captain on 25 February 1980.

3.  In June 1978, he injured his leg while skiing.  After medical examinations, treatment, and evaluations, he was recommended for entry into the physical disability evaluation system.

4.  A medical evaluation board (MEB) diagnosed him with acute tear lateral collateral ligament to the left knee and complete peroneal palsy of the left leg.  The MEB recommended his retention on active duty and referred him to a physical evaluation board (PEB).

5.  The PEB, as amended by the U.S. Army Physical Disability Agency (USAPDA), found him unfit and recommended placing him on the temporary disability retired list (TDRL) with reexamination in November 1980.  On 9 May 1979, he concurred with the findings and recommendations of the PEB, as amended by the USAPDA.

6.  In March 1979, prior to his concurrence with the PEB, he requested continuation on active duty and in July 1979, an Active Duty Review Board approved his continuation on active duty and reclassification into the Finance Corps.

7.  He was honorably released from active duty on 1 December 1986 and he was transferred to the USAR Control Group (Reinforcement).  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed
11 years, 1 month, and 1 day of creditable active service.

8.  On 24 September 1987, the U.S. Army Reserve Personnel Center notified him that a review of his medical record revealed he did not meet the standards for retention in the USAR and/or entry on active duty by reason of knee instability.

9.  On 24 September 1987, he requested a waiver for retention in the Reserve.  He also indicated if this waiver is disapproved, he requested a transfer to the Retired Reserve.

10.  On 25 July 1988, the U.S. Army Reserve Personnel Center published Orders D-07-901435 honorably discharging him from the USAR, effective 25 July 1988, by reason of medical disqualification.  His ARPC Form 249 shows he completed 12 qualifying years toward non-regular retirement.

11.  On 29 January 1992, in response to his petition, the ABCMR granted him relief in the form of showing he was transferred to the Retired Reserve.

12.  The applicant turned 60 years of age on 15 April 2012.

13.  Title 10, U.S. Code, section 12731 provides the legal age and service requirements for age and service for Reserve non-regular retirement.  It states that a person is entitled, upon application to retired pay 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, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.

14.  Title 10, U.S. Code, section 12731b provides a special rule for members with physical disabilities not incurred in the line of duty.  It states, in pertinent part, 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 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.  By law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement.  A qualifying year of service for nonregular retired pay is a full year during which a Regular or Reserve member is credited with a minimum of 50 retirement points.

2.  A member of the Selected Reserve of an RC 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.

3.  The evidence of record in this case confirms the applicant completed a total of 12 years of qualifying service for non-regular retirement between 25 July 1975 (date of appointment) and 25 July 1988 (date transferred to the Retired Reserve). As such, he does not meet the statutory or regulatory requirements for a 15-year letter.  Therefore, he is not entitled to the 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 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)                                         AR20120008223



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ABCMR Record of Proceedings (cont)                                         AR20120008223



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