IN THE CASE OF:	  

		BOARD DATE:	  12 February 2015

		DOCKET NUMBER:  AR20140006960


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 correction of his record to show that he was transferred to the Retired Reserve on 1 October 1991.  He also requests that his non-regular retired pay be retroactive to 6 August 2009, which was his eligibility date.

2.  The applicant states:

* he was medically separated on 1 October 1991
* he should have been given the option to be transferred to the Retired Reserve effective 1 October 1991
* it was the day that it was written into law that a National Guard Service Member could be medically separated with 15 or more years of service, but less than 20 years and still be eligible for retired pay at age 60

3.  The applicant provides:

* U.S. Army Human Resources Command (HRC) letter dated 16 December 2011
* HRC Letter dated 15 March 2012
* Joint Forces Headquarters North Carolina National Guard Memorandum for Record dated 27 March 2014
* Army National Guard (ARNG) Retirement Points History Statement dated 11 April 2012
* National Guard Bureau Form 22 (Report of Separation and Record of Service) dated 1 October 1991
* Memorandum for North Carolina ARNG (NCARNG) State Surgeon dated 25 June 1991
* results of Medical Review Memorandum dated 1 August 1991
* Orders 179-5 dated 14 August 1991

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.  With 15 years of qualifying service for retired pay purposes, the applicant was discharged from the NCARNG on 1 October 1991, due to not meeting the retention standards of chapter 3, Army Regulation 40-501(Standards of Medical Fitness).

3.  The applicant turned 60 years old on 6 August 2009.

4.  On 16 December 2011, as a result of the applicant submitting a DD Form 108 (Application for Retired Pay Benefits), he was notified by the HRC Chief, Retired Pay Branch that he did not complete the requirements to receive retired pay.  He was told that his records show he completed 14 years of qualifying service and that his application was being returned without action.

5.  On 15 March 2012, the applicant was notified by the HRC Chief, Retired Pay Branch that after a review of his records, he did complete 15 years of qualifying service; however, his discharge orders show he was discharged effective 1 October 1991, not for medical reasons.  He was again told that his application was being returned without action.

6.  In a Memorandum for Record dated 27 March 2014, the Joint Force Headquarters NCARNG Director, J-9 stated:

	a.  That office had been notified of HRC's denial of the applicant's retired pay benefits.
	b.  The applicant was medically separated by the NCARNG on 1 October 1991 due to back injuries he sustained during a motor vehicle accident.

	c.  The State Surgeon for the NCARNG found that the applicant no longer met medical retention standards in accordance with Army Regulation 40-501, paragraph 3-41c(2).

	d.  The applicant was given a discharge code of "MG" that signified he was being medically separated.

	e.  According to the ARNG Information Guide on non-regular retirement, chapter 3-2c and 12731b of Title 10, U.S. Code, states that Soldiers who have 15 qualifying years of service towards retirement but not 20, could be medically separated and remain eligible for retired pay at age 60.

	f.  When law was written into regulation, the effective date was identified as 1 October 1991, but it was not until 23 October 1992 that such authority was given to the states to generate a 15-year Notice of Eligibility (NOE) and retroactive authority was not granted.

	g.  The applicant’s date of separation and effective date of the law that allowed for a 15-year NOE was 1 October 1991; therefore, the applicant should have the option to request transfer into the Retired Reserve.

	h.  The applicant meets all requirements to receive non-regular retired pay.

7.  In a Memorandum for Record, the Joint Force Headquarters NCARNG Director, J-9 requested that a 15-year NOE be generated so the applicant may reapply and be awarded his retired pay.

8.  Title 10, US Code, Section 12731 allows Reserve Component Soldiers who were involuntarily separated because of medical unfitness between 1 October 1991 and 31 December 2001 to elect transfer to the Retired Reserve for Reserve retirement pay at age 60 based on a minimum of 15 years of qualifying service toward Reserve Component retirement.  The individual must also have met the requirement of having performed the last 6 years of qualifying service in the Reserve Components.

9.  Title 10, U.S. Code, section 12731a (Temporary Special Retirement Qualification Authority) provided that, during the period 23 October 1992 through 31 December 2001, a member of the Selected Reserve who completed at least 15, but less than 20, years of qualifying service as of 1 October 1991 could, upon the request of the member, be transferred to the Retired Reserve.

10.  Title 10, United States Code, Section 12731b, states in effect that a member of the Selected Reserve who no longer meets the qualifications for membership solely because he is unfit because of physical disability, may be treated as having met the service requirements and be provided with the notification required if he has completed and least 15 and less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant was qualified for transfer to the Retired Reserve based on his completion of 15 qualifying years of service for non-regular retirement.

2.  There is no evidence in the available records, and the applicant has provided none, to show that he requested transfer to the Retired Reserve; however, had the applicant been given a choice or the opportunity to request transfer to the Retired Reserve, it is likely he would have done so in a timely manner.  

3.  The applicant meets eligibility requirements for assignment to the Retired Reserve.  It would now be equitable and just to correct his military records by revoking his discharge of 1 October 1991 and assigning him to the Retired Reserve effective the same date, with entitlement to retired pay upon his application at age 60.

4.  As a matter of equity, it would also be appropriate to correct the applicant’s records to show he made a timely application for retired pay upon attaining age 60 and paying him any retired pay in arrears. 

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  revoking the applicant's 1 October 1991 discharge from the North Carolina Army National Guard and showing he was transferred to the Retired Reserve effective 1 October 1991, with 15 years qualifying service for retired pay and

	b.  showing he applied for retired pay prior to reaching age 60 on 6 August 2009. 

2.  The Board further recommends that based on the above corrections the Defense Finance and Accounting Service pay the applicant any retirement pay in arrears due him. 	



      _______ _   _______   ___
               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)                                         AR20140006960



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ABCMR Record of Proceedings (cont)                                         AR20140006960



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