IN THE CASE OF:  

		BOARD DATE:  11 September 2014    	  

		DOCKET NUMBER:  AR20130019757 


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 medical retirement under the Temporary Early Retirement Authority (TERA).

2.  The applicant states he was diagnosed as having had a heart attack.  

	a.  His commander told him he would receive a 20-year letter and a medical discharge.  His unit misinformed him and did not take care of him.

	b.  The U.S. Army Human Resources Command (HRC) sent him an application for retired pay and he took this application to the retirement services office for assistance.  He was informed that he does not qualify for retired pay because he did not receive a 20/15-year letter and because his discharge orders transferred him to "Reinforcement."  He should have been discharged under TERA for medical reasons.  

3.  The applicant provides:

* DD Form 261 (Report of Investigation Line of Duty and Misconduct Status), dated 15 July 1990
* Orders Number 162-046, dated 11 June 1999
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Army National Guard (ARNG) Current Annual Statement/ Points Statement Supplemental Detailed Report/Current Annual Statement, dated 20 July 1999
* ARNG Retirement Points History Statement Application for Retirement Pay, dated 24 October 2013

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 enlisted in the Kentucky ARNG (KYARNG) on 14 January 1972 and was honorably discharged on 9 June 1978.

3.  He enlisted in the KYARNG again on 25 June 1985 and served through a series of extensions and reenlistments.

4.  His record contains a DA Form 2173 (Statement of Medical Examination and Duty Status) dated 17 June 1987 which shows he had a pain in the middle of his back.  He had been loading rations for the mess section at Fort Stewart, GA, and felt a sharp pain in the middle of his back.  When the pain did not subside he went to sick call.  He was placed on restricted duty.  He had a previous back injury at his civilian job approximately 5 years prior to the current injury.

5.  His record contains a document from Kings Daughters Memorial Hospital, KY, showing he was treated on 11 May 1990 and diagnosed with acute bronchitis and hemoptysis [coughing up blood from the respiratory tract].

6.  His record contains a DA Form 2173 dated 11 May 1990 which shows he had bronchitis and was coughing up small amounts of blood while he was on duty.  His commander had him taken to the hospital.  A line of duty investigation determined this was not in the line of duty.  He had been sick several days prior to drill and was treated on the first day of drill for acute bronchitis and hemoptysis.

7.  He made a sworn statement on 11 May 1990 wherein he stated he was taken to the hospital that day and had been diagnosed with an infection in his back.  
8.  His record contains a series of "Certificate to Return to Work or School" slips showing he was unable to work from 9 July 1998 to 17 July 1998, 31 July 1998 to 5 August 1998, 6 August 1998 to 17 August 1998, and 18 September 1998 to 
5 October 1998.

9.  His record contains a doctor's note from the same physician who wrote the sick slips, dated 11 December 1998, and indicating the applicant had been diagnosed with hyperlipdemia [high lipid levels] and coronary artery disease.  This note also stated he had been having a lot of chest pain since September 1998. 

10.  He provided Orders Number 162-046, issued by the KYARNG, on 11 June 1999.  These orders show he was being discharged with a general character of service from the ARNG and transferred to the U.S. Army Reserve (Reinforcement).  The discharge authority was listed as National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph "8-26k."

11.  His record contains an NGB Form 22 showing he was discharged from the KYARNG in accordance with National Guard Regulation 600-200, paragraph 8-26k, by reason of being an unsatisfactory participant.  His character of service was listed as general (under honorable conditions), and he was transferred to the U.S. Army Reserve (Reinforcement).  Additionally, item 18 (Remarks) states he was discharged without personal notification in accordance with National Guard Regulation 600-200, paragraph 8-21b and his NGB Form 22 and discharge certificate were mailed to his last known address.

12.  He provided an ARNG Retirement Points History Statement Application for Retirement Pay showing he earned 17 good years of military service in the ARNG.  However, during his last 2 years of service with the KYARNG he earned less than the required number of retirement points (50 points) to earn a good retirement year.  From 25 June 1997 to 24 June 1998 he earned 43 points and from 25 June 1998 to 11 June 1999 he only earned 15 membership points.

13.  During the processing of his case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, dated 24 February 2014.  The advisory official recommended the applicant's request for retirement under TERA be disapproved and stated:

	a.  The applicant was discharged on 11 June 1999.  In his application he stated he was diagnosed as having a heart attack and was told he would receive a medical discharge and credited with 20 years.  He did not provide any documentation to support this claim.  Army Regulation 15-185 (ABCMR), paragraph 2-9, states "The ABCMR begins 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 evidence."

	b.  In fiscal year (FY) 1999, TERA was available but the applicant did not meet the requirement of serving at least 15 years of active service.  He served in the ARNG for 17 years as a drilling member, but he never served in an active duty status or in an Active Guard Reserve (AGR) status.  The Department of Defense Financial Management Regulation (DOD FMR), volume 12, chapter 18, paragraph 180201 states "The Secretary of each Military Department shall provide for the payment of retired pay amounts beginning in FY 1993, to active service members who retire up to 5 years before the completion of a 20-year period of service."  

	c.  The KYARNG concurred with the advisory officials recommendation for disapproval.

14.  The applicant did not respond to the advisory opinion.

15.  National Guard Regulation 600-200, chapter 8 states the separation of enlisted personnel from the ARNG is accomplished through discharge by appropriate state authorities.  When Soldiers are discharged from the State ARNG they automatically become members of the U.S. Army Reserve if they have a remaining contractual obligation.  This regulations states in paragraph 8-27g that Soldiers may be separated for unsatisfactory participation in accordance with Army Regulation 135-91(Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), chapter 4 (Absences).  

	a.  Paragraph 8-21b (Notification of Discharge) states the delivery of a Soldier's discharge may be constructive when the actual delivery of the discharge certificate and related documents cannot be accomplished due to the absence of the Soldier.  Receipt by the Soldier's organization of the order directing his or her discharge will be deemed sufficient notice.  The reason why the Soldier was separated without actual delivery of the discharge documents will be noted in item 18 of the NGB Form 22.

	b.  Paragraph 8-27g (Unsatisfactory Participation) states Soldiers separated in accordance with paragraph 8-27g, for unsatisfactory participation, will be notified of the recommendation for their involuntary discharge and afforded a reasonable opportunity to provide a written response for consideration by the separation authority.

16.  Army Regulation 135-91, chapter 4, section III (Unexcused Absences) states Soldiers will be charged with unsatisfactory participation when without proper authority they accrue in any one-year period a total of nine or more unexcused absences from scheduled inactive duty training (IDT)s, fail to obtain a unit of assignment during a leave of absence, or fail to attend or complete annual training.

17.  Army Regulation 135-178 (Separation of Enlisted Personnel), chapter 13 (Unsatisfactory Participation) states a Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because the Soldier is an unsatisfactory participant as prescribed by Army Regulation 135-91, chapter 4 and attempts to have the Soldier respond or comply with orders or correspondence have resulted in the Soldier's verbal or written refusal to comply with the orders or correspondence or; a second notice, sent, by certified mail, was refused, unclaimed, or otherwise undelivered; or verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed.  The service of a Soldier discharged for unsatisfactory participation under this chapter will normally be characterized as under other than honorable conditions.  If warranted by the Soldier's overall record, a characterization of service of under honorable conditions (general) may be furnished.

18.  DOD FMR, volume 12, chapter 180201 states the Secretary of each Military Department shall provide for the payment of retired pay amounts beginning in FY 1993, to active service members who retire up to 5 years before the completion of a 20-year period of service. 

19.  Army Regulation 680-2 (Automated Retirement Points Accounting Management), paragraph 3-2 states to qualify for non-regular retired pay at or after the age of 60, a Soldier or former Soldier must have completed at least 20 years of qualifying service, as provided in Title 10, U.S. Code (USC) sections 12731 and 12732.  However, ARNG Soldiers in an active status with at least 15 and fewer than 20 years of qualifying service who are disqualified from continued service due to physical disability and meet all other eligibility criteria may be retired.  

20.  Title 10, USC, 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) (performed at least 20 years of service computed under 10 USC 12732) 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 (each one-year period, after 1 July 1949, in which the person has been credited with at least 50 points).  

21.  Army Regulation 135-178, paragraph 12-1 (Medically Unfit for Retention), states Reserve enlisted Soldiers who are no longer qualified for retention by reason of medical unfitness under the standards of Army Regulation 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation Including Retirement), will be discharged unless they are granted a waiver of the medical disqualification or are eligible and request transfer to the Retired Reserve under the provisions of Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), paragraph 6-1 (Eligibility).

DISCUSSION AND CONCLUSIONS:

1.  There is no medical documentation showing he suffered from a heart attack or that he notified his unit of any medical problems that caused his not being able to participate.  The evidence of record shows he served over 15 years of qualifying service as a drilling ARNG Soldier.  However, in order to qualify for TERA he would have had to have served for at least 15 years of qualifying service and no longer met the qualifications for membership in the Selected Reserve solely because he was considered unfit because of physical disability.  

2.  His orders and NGB Form 22 show he was separated in accordance with National Guard Regulation 600-200, paragraph "8-26k" for unsatisfactory participation.  However, the paragraph number seems to have been entered in error and should have been listed as 8-27g, which is the correct paragraph for unsatisfactory participation.  

3.  The applicant only earned 15 membership points his last year as a drilling KYARNG member.  Additionally, based on the entry in item 18 of his NGB form 22, there appears to have been some difficulty in notifying him of the separation proceedings because his separation documents were sent to his "last known address."  This comment indicates he had been absent and possibly relocated and did not forward his new address to his unit.

4.  His separation for unsatisfactory participation indicates he was discharged because he was not showing up duty or participating in unit drills and training.  However, his characterization of service shows his chain of command did give him the benefit of considering his past performance, because he was issued a general characterization of service vice an other than honorable conditions character of service.   

5.  Based on the foregoing evidence, there is insufficient evidence to grant 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)                                         AR20130019757



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ABCMR Record of Proceedings (cont)                                         AR20130019757



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