IN THE CASE OF:	  

		BOARD DATE:  3 December 2013

		DOCKET NUMBER:  AR20130005349 


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.  Through her Member of Congress, the applicant requests, in effect, regular retirement by reason of physical disability, instead of non-regular retirement at age 60 for physical disability not incurred in line of duty.

2.  In her request to her Member of Congress, the applicant states:

* she was medically retired from the U.S. Army Reserve (USAR) in February 2008
* she served 17 years – 8 years on active duty and 9 years in the USAR
* she should be receiving retired pay, but her 15-Year Letter is wrong 
* for 4 years she has been attempting to have it corrected – she has all the documented proof to support her claim

3.  The applicant provides:

* her DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period 11 June 1991 through 16 October 1998
* Orders 08-007-00020, issued by Headquarters, Army Reserve Medical Command on 7 January 2008
* Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve     15-Year Letter), issued by the U.S. Army Reserve Personnel Command (AR-PERSCOM) on 22 October 2009



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 25 May 1968.  

3.  On 11 June 1991, she enlisted in the Regular Army.  She completed her initial entry training and was awarded military occupational specialty (MOS) 91E (Dental Specialist).  

4.  On 12 August 1993, she was promoted to the rank/grade of specialist (SPC)/E-4.

5.  On 18 May 1998, she signed a statement, wherein she requested retention on active duty, beyond her expiration term of service (ETS) date, for the purpose of medical care and hospitalization.  

6.  On 19 June 1998, she was approved for extension beyond her ETS date to  31 December 1998, for the purpose of appearing before a physical evaluation board (PEB).  Her record contains no other documentation related to her medical condition at the time.

7.  On 14 September 1998, she was counseled for having an inadequate family care plan.  She was informed she would have 30 days to provide a satisfactory family care plan, or face the possibility of administrative separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5.  She indicated she could not meet the 30-day timeframe.

8.  On 21 September 1998, her commander notified her that he was initiating action to separate her from the Army for failing to provide a satisfactory family care plan.

9.  On 24 September 1998, she was counseled on her proposed separation under the provisions of Army Regulation 635-200, paragraph 5-8, by reason of parenthood.  She indicated she concurred with the proposed action.

10.  On 6 October 1998, after consultation with counsel, she acknowledged receipt of her separation notification memorandum.  She waived consideration of her case by, and personal appearance before, an administrative separation board.  She elected not to submit statements in her own behalf.

11.  On 6 October 1998, her commander recommended her separation from the Army under the provisions of Army Regulation 635-200, paragraph 5-8, by reason of parenthood.

12.  On 6 October 1998, the separation authority approved her separation from the Army and directed she receive an Honorable Discharge Certificate.

13.  On 16 October 1998, she was honorably released from active duty and transferred to the USAR, under the provisions of Army Regulation 635-200, paragraph 5-8, by reason of parenthood.  

14.  On 17 April 2000, she reenlisted in the USAR.

15.  On 16 January 2003, she was promoted to the rank/grade of sergeant (SGT)/E-5.

16.  Orders 08-007-00020, issued by Headquarters, Army Reserve Medical Command on 7 January 2008, released her from her current assignment, by reason of medical disqualification – not the result of her own misconduct, and transferred her to the USAR Control Group (Retired Reserve).

17.  On 22 October 2009, she was issued a 15-Year Letter, which informed her that as a Selected Reserve member with at least 15 years of qualifying service, she was eligible under legislation (Title 10, U.S. Code (USC), section 12731b  (10 USC § 12731b) (Physical Disability Not Incurred in the Line of Duty)), to apply for retired pay on attaining age 60.

18.  Her record is void of documentation that indicates the medical nature of her disqualification for further service in the USAR.  Further, her record is void of any documentation that shows she was eligible for entry in the Army Physical Disability System (PDES).  Lastly, her record is void of any documentation that shows she may have been eligible for regular retirement, or retirement under any other provision of law besides 10 USC § 12731b.

19.  10 USC § 12731 (Age and Service Requirements) 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.

20.  10 USC § 12731b (Special Rule for Members with Physical Disabilities Not Incurred in the Line of Duty) 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, 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 a Reserve component.  

21.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) prescribes the Army PDES and 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.  It provides for MEBs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  

22.  Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Paragraph 3-3 (Disposition) states Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635-40 with the following caveat:  U.S. Army Reserve or ARNG Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 and chapter 10 of this regulation.


23.  Department of Defense (DOD) Instruction 1332.38 implements policy, assigns responsibilities, and prescribes procedures for:

* retiring or separating service members because of physical disability
* making administrative determinations for service members with service-incurred or service aggravated conditions
* authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because their condition is unrelated to military status and duty

Paragraph E2.P2.3 states members of the Ready Reserve with non-duty related impairments, who are otherwise eligible, will be referred into the PDES upon the request of the member or when directed under service regulations.  Referral will be solely for a determination of fitness for duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for regular retirement by reason of physical disability, instead of non-regular retirement at age 60 for physical disability not incurred in line of duty, was carefully considered.

2.  The applicant contends she was medically retired from the USAR in February 2008.  The evidence of record shows she was transferred to the Retired Reserve after being found medically unfit for further service.  Accordingly, she is eligible to receive retired pay, upon request, when she reaches 60 years of age.  Had she been medically retired, she would be eligible for retired pay immediately.

3.  With respect to her 15-Year Letter, by law and regulation, Reserve component members are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement.  However, a member of the Selected Reserve of a Reserve component, who is medically disqualified for continued service in a Reserve component, may be considered as having met the service requirement and may be issued a notification if the member completed at least 15 years, but less than 20 years of qualifying service for non-regular retirement purposes. 

4.  The law with respect to non-regular retirement is clear.  In order to receive retired pay at age 60, a Soldier must have completed 20 qualifying years.  The law also makes a special rule for members who completed at least 15 but less than 20 years.  If a member no longer meets the qualifications for membership in the Selected Reserve because of unfitness due to physical disqualification, the member may be issued a 15-year letter.  However, this option is available only in those cases where a physical disability is not incurred in line of duty.  Soldiers in such situations do not undergo an MEB or PEB for rating and/or compensation. 
5.  She contends her 15-Year Letter is incorrectly worded and should show her medical disqualification resulted from injuries incurred in the line of duty.  Her record is void of any evidence that supports this contention.  She provided no medical records or documentation pertaining to her earlier PEB action or pertaining to her USAR separation action.  Specifically, her record is void of evidence that explains the nature of her medical unfitness in 2008, or that shows a correlation between her medical unfitness in 2008 and the medical issues she experienced in 1998, prior to her separation by reason of parenthood.  Absent such evidence, there is insufficient evidence to show her medical unfitness resulted from injuries incurred in the line of duty.  In view of the foregoing, she 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)                                         AR20100023640



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130005349



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1