IN THE CASE OF:	  

		BOARD DATE:  16 January 2014

		DOCKET NUMBER:  AR20130008689 


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, a Notification of Eligibility for Retired Pay at Age 60 (known as the 20-year letter) and retirement from the Army National Guard (ARNG).

2.  The applicant states:

	a.  He enlisted in the Regular Army (RA) on 26 July 1967.  After his training he was sent to Vietnam and he served four tours.  In 1970, his feet started to bother him.  While in Vietnam he rode with the troop every day and since he was the motor sergeant, sometimes he had to work all night long in order to have trucks ready to go in the morning.  During his 2 years serving at Fort Carson, CO, he was not allowed to wear boots.  He served in Germany and served 1 year with Troop A, 3rd Squadron, 7th Cavalry.  The entire year he was over there he was not allowed to wear anything on his feet but shower shoes.

	b.  He completed 16 years of service with the Army and the ARNG.  He wanted to reenlist for 4 additional years to attain 20 years and retire.  He was not allowed to reenlist because of his feet, which was a problem he acquired in Vietnam.  His ARNG and Army time totals 19 years and 9 months of service.  He always felt he could complete his 20 years with the ARNG, but he fell short by
3 months.

	c.  At that time he started drinking heavily on the account of his feet hurting and the skin peeling off of all his toes.  If there is any way possible, can
3 additional months be added to his discharge so he can retire from the ARNG?  He is now 73 years of age and he has been working with the ARNG for several years trying to get his 20 years.  He is submitting information on his feet and service time.

3.  The applicant provides:

* Eight Standard Forms (SF) 600 (Health Record – Chronological Record of Medical Care)
* Four SFs 513 (Clinical Record – Consultant Sheet)
* Ten DA Forms 3349 (Medical Condition – Physical Profile Record)
* SF 88 (Report of Medical Examination)
* SF 93 (Report of Medical History) - first page
* DD Form 214 (Report of Separation from Active Duty) for the period ending 27 May 1975
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 9 December 1981
* Compensation and Pension Exam Report
* A letter of support 
* Minnesota Commercial Driver’s License

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’s ARNG military records are not available to the Board for review.  A review of the U.S. Army Human Resources Command Soldier Management System (SMS) and interactive Personnel Electronic Records Management System (iPERMS) databases failed to reveal those records.  However, there were sufficient documents submitted by the applicant for the Board to conduct a fair and impartial review of this case.

3.  With prior enlisted service in the ARNG, the applicant enlisted in the RA on 28 April 1967 for 3 years.  He completed training and he was awarded military occupational specialty (MOS) 11D (armor intelligence specialist).  He served in Vietnam from 6 January 1968 through 24 April 1968.

4.  He was discharged from active duty on 18 August 1968 for the purpose of immediate reenlistment.  He completed 1 year, 3 months, and 22 days of active service.  It is unclear if he was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period of service.  However, on 8 November 2012 he was issued a Certification of Military Service for this period of active duty service.

5.  He reenlisted in the RA on 19 August 1968 for 3 years.  He again served in Vietnam from 10 October 1968 through 4 December 1971.  He was discharged from active duty on 3 June 1971 for the purpose of immediate reenlistment.  He completed 2 years, 9 months, and 16 days of active service.  He was issued a DD Form 214 for this period of service crediting him with:

* 2 years, 9 months, and 16 days of net service this period
* 9 years, 3 months, and 21 days of other service
* 12 years, 1 month, and 7 days total of the net and other service
* 4 years, 7 months, and 7 days of total active service
* 2 years, 7 months, and 24 days of foreign service

6.  He again reenlisted in the RA on 4 June 1971.  He served in primary MOS 11D and secondary MOS 63C (track vehicle mechanic).  He served in Germany from 17 April 1974 through 23 May 1975.

7.  He provided:

	a.  Eight SFs 600, dated between June 1974 and January 1975, that show he was treated for peeling of skin on his toes and severe fungal infection of his toes (started in Vietnam) and adema around his left eye and right wrist and thumb; the form stated he was first placed on a 30-day profile then a 60-day profile and ordered to wear shower shoes on his feet.

	b.  Four SFs 513, dated between September 1972 and July 1972, that show he was previously seen because of skin problems on his feet (severe dermatitis).

	c.  Ten DA Forms 3349, dated between May 1974 and March 1975, that show he was found medically qualified for duty and placed on profile for severe tinea pedia and dyshidratic exyema; he was restricted from crawling, stooping, running, jumping, and prolonged standing or marching and allowed to wear sandals, moccasins, and tennis shoes.

	d.  An SF 88 that shows he underwent a separation physical examination on 14 March 1975 and he had extensive weeping/scaling dermatitis of both feet; he was found qualified for separation.

8.  He was honorably discharged from active duty in pay grade E-6 on 27 May 1975.  He completed 3 years, 11 months, and 12 days of net active duty this period.  He was issued a DD Form 214 for this period of service crediting him with:

* 3 years, 11 months, and 12 days of net active service this period
* 4 years, 7 months, and 7 days of prior active service
* 8 years, 7 months, and 19 days of total service
* 7 years and 6 months of prior inactive service
* 16 years, 1 month, and 19 days of total service for pay
* 1 year, 1 month, and 7 days of foreign service

9.  He also provided a copy of his NGB Form 22, for the period ending
9 December 1981, that shows he enlisted in the Minnesota ARNG on 28 April 1978 and he was discharged on 9 December 1981, under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 7-9, for Continuous and Willful Absence.  His service was characterized as general.  He was credited with completion of the following:

* 3 years, 7 months, and 11 days of net service this period
* 16 years, 1 month, and 19 days of foreign service
* 19 years and 9 months of total service for pay

10.  He also provided his commercial driver's license and copies of:

	a.  A Compensation and Pension Exam Report, dated 14 June 1999, that shows he underwent a dermatology examination on 11 June 1999 and he stated that he first noticed problems involving his feet in 1972 or 1973 and he noted burning involving his feet while he was wearing combat boots.

	b.  A letter of support, dated 18 April 2013, wherein the individual stated he has known the applicant since 1980.  When he noticed the applicant wearing sandals, he asked why, and the applicant responded that he had what was called “jungle rot.”  The applicant wore sandals or tennis shoes with the top half of the 

shoe cut-out because he was in so much pain.  The Army was responsible for what happened in Vietnam, so they should help the applicant with his feet now.

11.  National Guard Regulation 600-200 (Enlisted Personnel Management) establishes standards, policies, and procedures for the management of the ARNG.  The regulation in effect at the time specified in paragraph 7-9 a member of the ARNG could be separated for continuous and willful absence.

12.  Army Regulation 135-180 (ARNG and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), in effect at the time, stated in order to be eligible for retired pay, an individual did not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and (3) served the last 8 years of his/her qualifying service as a Reserve Component Soldier.  The requirement to serve the last 8 years in a Reserve Component has since been amended to the last 6 years and currently 0 years.  It also states after computation of service and determination of 20 creditable years of service, each Reserve Component Soldier will receive a letter of notification of eligibility for retired pay at age 60 from the Chief, NGB for ARNG Soldiers. 

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant served in the RA for a total of 8 years, 7 months, and 19 days, with prior ARNG enlisted service.  He again enlisted in the ARNG on 28 April 1978 and was discharged on 9 December 1981 for Continuous and Willful Absence, with a general discharge.  He was credited with completion of 19 years and 9 months of total service for pay.

2.  His contentions and the documents he submitted were carefully considered.  However, it appears he was separated from the ARNG by his own accord for misconduct just shy of completing 20 years of service for pay.  It is not known how many of those years were qualifying years (i.e., earned at least 50 retirement points per retirement year) for a Reserve retirement.  He knew or should have known he needed to complete 20 good years of satisfactory service to be eligibility for a 20-year letter and retirement.  

3.  Without evidence to the contrary, it appears his administrative separation from the ARNG was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  It also appears he was properly discharged in accordance with pertinent regulations with due process.


4.  He did not provide sufficient evidence or a convincing argument to show his feet condition prevented his satisfactory completion of 20 years of service.  His discharge was based on misconduct.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20130008689



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ABCMR Record of Proceedings (cont)                                         AR20130008689



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