IN THE CASE OF:	  

		BOARD DATE:	  25 March 2014

		DOCKET NUMBER:  AR20130011817 


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 his records be corrected to show he was retired in the pay grade of E-5 instead of being honorably discharged in the pay grade of E-2.

2.  The applicant states that he was honorably discharged with 19 years,           11 months, and 2 days of service and he believes he should have been retired instead of honorably discharged.  He goes on to state that he went for mental health counseling and his platoon sergeant did not like that and administratively reduced him repeatedly due to poor behavior.  He continues by stating that his platoon sergeant wanted him to leave the National Guard but he refused to do so and he was administratively discharged just days short of retirement eligibility without his involvement or being informed in any way.  He also states that when he finally addressed the issue with his chain of command he was in a “Catch 22” situation.  He had been out too long to be reinstated or reenlist and he was too old to enlist.

3.  The applicant provides a copy of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service). 

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 records, though somewhat incomplete, show that he served in the U.S. Army Reserve (USAR) from 8 April 1962 to 11 April 1968.  He enlisted in the U.S. Navy on 12 April 1968 where he served until he was honorably discharged on 9 April 1971.

3.  On 12 January 1976, he enlisted in the Pennsylvania Army National Guard (PAARNG) and he continued to serve through a series of continuous reenlistments and extensions.  On 16 April 1980, he was promoted to pay grade E-5 and on 6 June 1984 he was reduced to pay grade E-4 due to inefficiency.

4.  On 7 January 1985, the applicant was granted a 1-year conditional release from the PAARNG due to having changed his residence to Jacksonville, Florida.  His conditional release expired on 7 April 1985.

5.  On 9 May 1985, the applicant was honorably discharged under the provisions of National Guard Regulation 600-200, paragraph 7-10n, for other good and sufficient reasons (Inability to obtain assignment).  He was transferred to the USAR Control Group (Reinforcement).

6.  On 12 July 1985, he again enlisted in the same unit of the PAARNG for a period of 3 years.

7.  On 27 May 1986, he was reduced to pay grade E-3 due to misconduct and on 11 June 1986 he was reduced to pay grade E-2 due to misconduct.  The specific misconduct leading to his reductions involved the applicant being absent without leave (AWOL) from unit training assemblies and failure to go to his place of duty.

8.  On 16 June 1986, the applicant’s commander dispatched a letter to the applicant’s physician based on a request from the applicant that he be medically separated from the PAARNG because he was no longer emotionally capable of fulfilling his military obligations. 

9.  On 23 June 1986, the applicant’s civilian physician dispatched a letter to the applicant’s commander indicating that the applicant had been diagnosed as having Major Depressive Disorder and a Suicide Attempt.  He also indicated the applicant had a history of alcohol abuse and underlying paranoid schizophrenia which would most likely manifest itself as time goes on.  He stated that it was his opinion that it would not be appropriate for the applicant to continue in military service.

10.  On 7 November 1986, the applicant's commander submitted a request to separate the applicant from the PAARNG due to his medical condition and his inability to participate in the PAARNG.

11.  The chain of command concurred that the applicant did not meet medical standards to remain in the PAARNG and approved the recommendation for discharge.

12.  Accordingly, he was honorably discharged from the PAARNG and the USAR on 12 December 1986 under the provisions of National Guard Regulation 
600-200, paragraph 7-9k, due to other designated physical or mental conditions.  He had 19 years, 11 months, and 2 days of service for pay purposes.  He was 
42 years of age at the time of his discharge.

13.  A review of the applicant's records failed to show he had 20 qualifying years of service.  It appears that he had approximately 12 years of qualifying service based on 50 points a year.

14.  Army Regulation 40-501 (Standards of Medical Fitness), provides in pertinent part that normally Reservists who do not meet the fitness standards outlined in chapter 3 of that regulation will be transferred to the Retired Reserve in accordance with Army Regulation 140-10 or discharged from the USAR under the provisions of Army Regulation 135-175 or Army Regulation 135-178.  They 
will be transferred to the Retired Reserve only if eligible and if they apply for it.  

15.  Title 10 U.S. Code, section 12731a was a temporary special retirement qualification authority.  A revision, dated 5 October 1994, provided that, during the period 1 October 1991 through 30 September 1999 (later extended to 
31 December 2001) a member of the Selected Reserve who has completed at least 15, and less than 20, years of qualifying service and no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, and upon the request of the member, may be transferred to the Retired Reserve.  Title 10, U.S. Code, section 12731a(a)(1) was amended to extend the Early Reserve Retirement Eligibility for Disabled Members to the period beginning on 23 October 1992 to Soldiers who attained 15 years of retirement eligibility after 1 October 1991.

16.  Title 10, USC, section 12731 provides the legal authority for age and service requirements for non-regular service retired pay.  It states, in pertinent part, that members are entitled to retired pay when they are at least 60 years of age and have performed at least 20 years of qualifying service.

17.  Title 10, USC, sections 12731 through 12739 authorize retired pay for Reserve Component military service.  Under this law, a Reserve Component Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve Component Soldier earned 50 retirement points or more.   

DISCUSSION AND CONCLUSIONS:

1.  At the time of his discharge, there was no provision for a 15-year letter or    15-year retirement and he did not have enough qualifying years for a 20-year letter to qualify for a non-regular retirement at age 60.

2.  Accordingly, he was properly discharged in accordance with the applicable regulation with no indication of any violations of his rights.

3.  While he contends that he was discharged without any knowledge of being discharged, his records clearly show that he requested separation from the PAARNG because he was no longer emotionally capable of fulfilling his military obligations.

4.  Therefore, in the absence of evidence to show otherwise, there appears to be no basis to grant his request to be retired by reason of length of service.

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)                                         AR20130011817



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ABCMR Record of Proceedings (cont)                                         AR20130011817



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