IN THE CASE OF:	   

		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20140000457 


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 Retired Pay at Age 60 (15-year letter).

2.  The applicant states, in effect, that his records were not properly submitted and he was not issued a 15-year letter due to his back injury which qualified him for disability. 

3.  The applicant provides copies of his Chronological Statement of Retirement Points, his Enlisted Evaluation Report (EER), a statement from the Social Security Administration, an Honorable Discharge Certificate, orders, and his Personnel Qualification Record (DA Form 2-1).   

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 U.S. Army Reserve (USAR) on 21 April 1971 for a period of 6 years.  He completed his training as a food service specialist and remained in the USAR through a series of continuous reenlistments.  His last reenlistment was on 19 February 1985 for a period of 6 years, making his expiration term of service (ETS) 18 February 1991.  He was promoted to pay grade E-7 on 8 March 1985.

3.  The last EER in his official records and the EER provided by the applicant with his application ends in October 1987 and reflects that the applicant was profiled during the entire period of the report (12 months) due to a back injury he sustained at his civilian job.  However, both his rater and indorser stated his profile did not affect his performance of his military duties.  Both his rater and indorser recommended his retention.

4.  On 23 June 1988, he was transferred to the USAR Control Group (Reinforcement).  The reason for the transfer is not in the available records.  On 29 October 1991, he was honorably discharged from the USAR.

5.  A review of the applicant's official records failed to show he was reviewed by a military medical board or that he underwent any evaluation under the Physical Disability Evaluation System (PDES).

6.  The letter provided by the applicant from the Social Security Administration indicates the applicant’s disability date is 7 September 1987 and that his benefits started in March 1987. 

7.  In the processing of this case a staff advisory opinion was obtained from the U.S. Army Human Resources Command (HRC) which opines that the applicant was discharged from the USAR due to his ETS and there was no evidence to show he was seen by a military medical board or that he was medically disqualified for further service.  Officials at HRC opined that based on the information contained in the available records, the applicant is not eligible to receive a 15-year letter.

8.  The advisory opinion was provided to the applicant for comment and he responded to the effect that he disagreed with the opinion because it was his USAR unit’s responsibility to follow proper procedures and refer him for processing through the PDES.  Instead, his unit transferred him from a Troop Program Unit to a control group where he remained until he was discharged.  He 
continues by stating that the actions of his unit resulted in him being denied a review of fitness under the PDES and retirement benefits.

9.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of physical disability incurred or aggravated in service.  It states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  

10.  Title 10, U.S. Code, section 12731a(c)(3), was the temporary special retirement qualification authority.  It provided that, beginning 23 October 1992 (emphasis added) through 31 December 2001, a member of the Selected Reserve who had completed at least 15 years of qualifying service as of              1 October 1991, or who completed at least 15, but less than 20, years of qualifying service during the period 1 October 1991 through 31 December 2001, could, upon the request of the member, be transferred to the Retired Reserve.  It stated a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of a not-in-the-line-of-duty physical disability may, for the purposes of section 12731, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service.

11.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U.S. Code by permanently adding section 12731b, (Special rule for members with physical disabilities not incurred in line of duty).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show he was notified of his completion of 15 years of qualifying service in a 15-year letter so that he may retire from the USAR at the age of 60.

2.  The temporary special retirement qualification authority is clear in that a member of the Selected Reserve who no longer met the qualifications for membership in the Selected Reserve solely because the member was unfit because of physical disability could, for the purposes of section 12731 of Title 10, U.S. Code, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service.  However, this provision of law did not go into effect until 23 October 1992, 1 year after the applicant was discharged.  Further, he had not been in the Selected Reserve since 1988.

3.  Unfortunately, the applicant did not qualify for early retirement under the temporary special retirement authority and it appears that he is not entitled to correction of his records in this case.

4.  Further, processing through the physical disability evaluation system requires that a Soldier be incapable of performing his duties.  He may have had a profile for his back, but his last EER also states that he was fully capable of performing his duties.  

5.  Therefore, in the absence of evidence to the contrary, it must be presumed that he was properly discharged with no violations of any of his rights.  Accordingly, there is no basis to grant his request for a 15-year retirement.

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)                                         AR20140000457



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ABCMR Record of Proceedings (cont)                                         AR20140000457



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