IN THE CASE OF:  

		BOARD DATE:  31 July 2014

		DOCKET NUMBER:  AR20130019892
 

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, correction of his records to show he has 
20 years of creditable service for retirement.

2.  The applicant states that in 2006 he went to the National Guard in Puerto Rico to claim his benefits.  He was informed that he did not have the 20 years of service completed and that there was nothing they could do.  He asked about a medical evaluation board (MEB) but he was transferred to another unit and discharged without an MEB.  His discharge orders and other documents were sent to an address that was not his home of record.  He visited the Connecticut Army National Guard (CTARNG) judge advocate general (JAG) office and was advised to request a correction to his records with this Board.  

3.  The applicant provides copies of:

* his history of events while in the ARNG, dated 21 October 2013
* a 21 October 2010 Army Review Boards Agency letter
* a 2 July 2013 Connecticut National Guard letter
* 22 August 2013 congressional correspondence
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) ending 26 November 1973
* National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service) for periods ending 1 December 1979 and 14 January 1991
* his driver's license and Social Security Card
* state of New Jersey Office of the Registrar of Vital Statistics record of birth information
* ARNG Current Annual Statement, dated 5 February 1992
* DD Form 4 (Enlistment Contract - Armed Forces of the United States), dated 28 April 1973
* a 26 June 1973 Puerto Rico ARNG (PRARNG) active duty for training (ADT) orders
* Standard Form (SF) 600 (SF 600) showing treatment on 7 August and 
9 September 1973
* 24 October 1975 U.S. Army Training Center, Fort Polk, Louisiana, orders releasing him from ADT
* DA Form 2-1 (Personnel Qualification Record - Part II) pages 1-3
* NGB Form 23 (Retirement Credits Record), ending 1 December 1979
* ARNG Retirement Points History Statement, dated 19 January 2010
* attachment orders, dated 10 August 1979
* DA Form 2139 (Military Pay Voucher) for August 1979
* Leave and Earnings Statements from January to December 1979
* discharge orders with an effective date of 1 December 1979
* Report of Death, Sickness, Injury or Damage, dated 8 June 1983
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 20 November 2009
* PRARNG memorandum, subject:  Accident (Applicant), dated 8 October 2009
* twelve letters and a statement to the Department of Veterans Affairs (VA) from witnesses to an accident involving the applicant
* DA Form 2173, dated 20 November 2009 
* DD Form 689 (Individual Sick Slip), dated 3 and 25 May 1986
* medical notes in reference to a surgery in March 1990
* his statement requesting placement in the Inactive National Guard (ING) until his physical condition is resolved
* 6 November 1990 orders reassigning him to the ING 
* 8 October 1991 CTARNG letter notifying him of an overdue physical
* 16 January 1992 orders showing he was discharged from the ING and transferred to the USAR Control Group (Reinforcement)

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 PRARNG on 28 April 1973.  He was ordered to ADT for 20 weeks at Fort Polk, Louisiana, effective 6 August 1973, for basic and advanced individual training in military occupational specialty 11B (Infantryman). 

3.  On 7 August 1973, he was treated at the Fort Polk Dispensary for a sprained ankle and on 9 September 1973 he was treated for injuries to his left shoulder, rib, and side of his head from falling down some stairs.

4.  He was released from ADT on 30 November 1973 and returned to his unit in Puerto Rico.

5.  A DA Form 2173 shows that, based upon statements from other Soldiers, there is evidence that the applicant was involved in an accident involving a tank when he injured his head, knees, and back in 1975 at Camp Santiago, Puerto Rico.  

6.  He enlisted in the CTARNG on 30 November 1979.

7.  A Report of Death, Sickness, Injury or Damage shows that on 8 June 1983 he was on a tactical road march and complained of abdominal pains, vomited and passed out.  He was taken to the Battalion Aid Station and medically evacuated to Wilcox Army Hospital, Fort Drum, New York. 

8.  A 27 March 1990 statement shows he requested to be placed in the ING until his physical condition was resolved.  

9.  A 14 November 1990 medical note shows he was excused from the National Guard for six months due to a back condition. 

10.  CTARNG orders, dated 6 November 1990, show he was transferred from Company C, 2nd Battalion 102nd BCB, to the ING, effective 5 November 1990.  The additional instructions show "(b) Individual will keep unit advised of current address. (c) Individual will keep unit advised of any changes of medical profile."  


11.  An 8 October 1991 CTARNG letter informs the applicant that he was overdue for a physical examination.  He was further informed that, "You have 
90 days from the above date to complete a periodic physical.  Failure to comply with this requirement will result in your separation from the ARNG and transfer to the U.S. Army Reserve (USAR) Control Group under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) paragraph 8-27b."

12.  CTARNG orders issued on 16 January 1992 show he was discharged from the ARNG effective 14 January 1991.  The authority is shown as paragraph 
8-27j, NGR 600-200. 

13.  A 2 July 2013, CTARNG letter informs the applicant that at the time he requested a transfer to the ING he signed a statement acknowledging the requirements while a member of the ING, including that, "I will be required to maintain  a current periodic physical."  His failure to comply with the requirement resulted in his separation from the ARNG and transfer to the USAR Individual Ready Reserve (IRR).  Additionally, a review of his records revealed he did not qualify for a medical retirement.

14.  His ARNG Annual Statement, dated 5 February 1992, shows he had 
16 years of creditable service toward retired pay.  

15.  The 21 October 2013 history of his ARNG experiences relates several incidents in which he reports he was injured and hospitalized.  He also reports that he failed to receive various items of correspondence that were mailed to him. However, he fails to identify any document or incident that demonstrates that the existing records of points accounting is wrong.

16.  His USAR Chronological Statement of Retirement Points, dated 22 July 2014, shows he has no additional qualifying years for retirement.  

17.  NGR 600-200, in effect at the time, provided the reasons for discharge from the State.  Paragraph 8-27j states:  Failure to obtain required physical in accordance with NGR 40-501.  Solider will be notified in writing of the requirement to obtain physical.  The Soldier will be given 90 days after the letter is mailed to comply with this requirement.  Commander can authorize an extension up to 60 days due to extenuating circumstances.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his record to show he has 20 years of qualifying service for retirement.
2.  The evidence of record shows the applicant was transferred to the ING per his request.  He was sent a letter notifying him he needed to take a periodic physical. A physical was not received and he was discharged from the ARNG and transferred to the IRR effective 14 January 1991.  

3.  The records show he has 16 years of creditable service for retirement.

4.  The applicant does not qualify for retirement and his request should be denied.

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 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)                                         AR20100006960



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ABCMR Record of Proceedings (cont)                                      AR20130019892



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