IN THE CASE OF:	  

		BOARD DATE:  25 February 2014

		DOCKET NUMBER:  AR20130009265 


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 that he be issued a notification of eligibility for 
non-regular retired pay based on 15 years of qualifying service (15-year letter).

2.  The applicant states he served honorably for 17 years in the Regular Army (RA) and the U.S. Army Reserve (USAR).  In April 2004, he received an under other than honorable conditions discharge for use of drugs.  He was directed by his recruiter to request an upgrade of his discharge in 2006.  In 2008, he received notification that his discharge was upgraded to general under honorable conditions.  He did not receive his amendment orders until 2010.  By then it was too late to reenter the USAR because the regulations had changed and it became impossible for him to reenter the military.

3.  Although he was addicted to a powerful drug, he took responsibility for his actions.  He deserves to get some type of retirement for over 17 years of service.
He did everything his recruiters told him to get back in the military.  They had no intention of helping him.  Finally, they told him that he was just a drug addict and that they did not want him. 

4.  The applicant provides:

* two DD Forms 214 (Certificate of Release or Discharge from Active Duty) for periods ending 2 August 1984 and 1 June 1991
* Orders 04-103-00051, dated 12 April 2004, issued by the 84th Division (Institutional Training)
* Orders 10-186-00001, dated 5 July 2010, issued by Headquarters, U.S. Army Reserve Command
* letter from the Army Review Boards Agency, Acting Chief, Support Division, St. Louis dated 8 July 2010

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 3 February 1960.  He enlisted in the Regular Army on 12 August 1980 and he was honorably released from active duty on
2 August 1984.  He was transferred to the USAR to complete his remaining service obligation.    

3.  The complete facts and circumstances of his discharge from the USAR are not available for review.  However, Orders 04-103-00051, dated 12 April 2004, issued by the 84th Division (Institutional Training) show he was discharged from the USAR under other than honorable conditions effective the date of the orders under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations).  A Department of the Army Reserve Personnel Center (DARP) Form 249-2-E, Chronological Statement of Retirement Points, dated 5 June 2013, shows the applicant completed 17 years and 6 days of service qualifying for retirement.

4.  On 6 May 2008, the President, Army Discharge Review Board (ADRB), informed the applicant the ADRB had voted to upgrade his characterization of service to general, under honorable conditions.

5.  Orders 10-186-00001, dated 5 July 2010, issued by Headquarters, US Army Reserve Command, amended Orders 04-103-00051 to reflect the discharge upgrade approved by the ADRB.

6.  On 21 May 2013, an advisory opinion was obtained from the Chief, Retired Pay Branch, U.S. Army Human Resources Command.  The advisory official found the applicant did not meet the eligibility criteria for issuance of a 15-year letter.  She states:

	a.  Issuance of a 15-year letter is governed by Title 10, U.S. Code, Section 12731(b) (Physical Disability not Incurred in the Line of Duty).  Eligibility is determined based on the following qualifications:

* not eligible for retention in the Selected Reserve due to medical disqualification
* completed at least 15 years but less than 20 years of qualifying service
* completed the last 6 years of qualifying service while a member of a Reserve Component
* requested transfer to the Retired Reserve

	b.  The applicant's records do not show he was found unfit for retention due to medical reasons.  He was discharged under other that honorable conditions, which later was changed to discharged under honorable conditions by the ADRB

7.  The applicant was provided a copy of the advisory opinion for response or rebuttal, but he did not respond in the given time frame.

8.  Title 10, U.S. Code, section 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; has performed the last six years of qualifying service while a member of any category named in section 12732(a)(1), 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.

9.  Title 10, U.S. Code, section 12731b (Special Rule for Members with Physical Disabilities Not Incurred in Line of Duty), states 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 purposes of section 12731 of this title, determine to treat the member as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member has completed at least 15 and less than 20 years of service computed under section 12732 of this title.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for issuance of a 15-year letter was carefully considered, but it was determined there is insufficient evidence to support his request.  

2.  The applicant states he was discharged from the USAR for use of drugs.  A 15-year letter may only be issued in cases in which a member no longer meets the qualifications for membership in the Selected Reserve because he or she is unfit because of physical disability.  He was not discharged for this reason; therefore, there is no basis for issuing him a 15-year letter.  

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)                                         AR20130009265





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ABCMR Record of Proceedings (cont)                                         AR20130009265



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