IN THE CASE OF:	  

		BOARD DATE:	  11 June 2013

		DOCKET NUMBER:  AR20120017488 


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, that he be issued a 15-Year Letter and granted his non-regular retirement benefits. 

2.  The applicant states, in effect, that he was discharged from the United States Army Reserve (USAR) due to reaching the maximum age of 60 and should receive a waiver for the last 5 years of service and granted his non-regular retirement benefits.  He goes on to state that he served 15 years of service and was being paid for 30 years of service and was an outstanding noncommissioned officer (NCO)

3.  The applicant provides a three-page letter explaining his application, a copy of his chronological statement of retirement points, discharge orders, copies of his Department of Veterans Affairs (VA) Rating Decision and explanation of benefits, a copy of his request for a waiver dated in 2008, a copy of his leave and earnings statement, medical documents, copies of an award, a NCO Evaluation Report   and a copy of orders ordering him to active duty. 

CONSIDERATION OF EVIDENCE:

1. The applicant was born in January 1952 and enlisted in the USAR on            11 September 1972 and served until he enlisted in the Regular Army on              2 October 1974.  He served in the Regular Army until 21 October 1977 when he was transferred back to the USAR.  He was discharged from the USAR on       
10 September 1978. 

2.  He enlisted in the Army National Guard (ARNG) on 7 July 1979 and served in the ARNG until he enlisted in the USAR on 28 April 1988.  He remained in the USAR until he was honorably discharged in the pay grade of E-6 on 18 January 2012 at age 60.  He had 30 years of service for pay purposes but only 15 years and 2 days of qualifying service for retirement.

3.  The documents submitted by the applicant indicating that he requested an exemption from Involuntary Active Duty in August 2008 do not contain the outcome of his request.  However, a review of his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File indicates that he was serving as an Individual Mobilization Augmentee (IMA) at the time and as a result of his request was transferred to the USAR Control Group (Reinforcement). 

4.  The VA Rating Decision provided by the applicant shows that on 9 June 2008 the applicant was granted a 10% service-connected disability rating for chrondromalacia, osteoarthritis and internal derangement of left knee with history of s/p quad repair.

5.  A review of his AMHRR failed to provide any indication that the applicant was unable to perform his duties or that he was medically disqualified for further service.

6.  In the processing of this case a staff advisory opinion was obtained from the Army Human Resources Command (HRC) at Fort Knox, Kentucky which opines that the applicant had numerous opportunities to earn the requested 5 years of qualifying service and that there are no such waivers authorized.  Accordingly, he is not authorized to receive retired pay benefits.  

7.  The advisory opinion was provided to the applicant for comment and responded to the effect, that had he not been injured during Operation 
Enduring Freedom, he would not have reached out to the Board.

8.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U.S. Code, by adding section 12731b (Special Rule for Members with Physical Disabilities Not Incurred in Line of Duty).  Section 12731b states that a member of the Selected Reserve who no longer meets the qualification for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purpose of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he or she has completed at least 15 years and less than 20 years of service and, at the time, the last 8 years of qualifying service was in a Reserve Component.  A qualifying year is one in which a Reserve Component Soldier earns 50 retirement points or more.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U.S. Code, chapter 61, and Department of Defense Directive 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR considers individual applications that are properly brought before it.  The ABCMR will decide cases on the evidence of record; it is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be granted a 15-year retirement based on his medical condition as documented by the VA Rating Decision he provides with his application has been noted and appears to lack merit.

2.  The applicant only completed 15 qualifying years of service for retirement during his 30 years of service and he has failed to show through the evidence of record and the evidence submitted with his application that he was medically unfit to perform his duties at the time of his discharge due to maximum age. 

3.  Accordingly, he does not meet the criteria for either a non-regular retirement or a medical retirement in accordance with the laws and regulations in effect at the time of his discharge.  Therefore, there is no basis to grant his request. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   _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)                                         AR20120017488





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ABCMR Record of Proceedings (cont)                                         AR20120017488



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