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		IN THE CASE OF:	  

		BOARD DATE:	  11 August 2015

		DOCKET NUMBER:  AR20140020137 


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 is entitled to Nonregular (Reserve) retired pay.

2.  The applicant states:

* he was medically retired after receiving a kidney transplant in 1994, but he was never evaluated by a medical board and is not receiving retirement benefits
* he served for 14 years and has never requested a 15 or 20-year letter
* he should be qualified for early Reserve retirement eligibility for disabled members of the Selected Reserve

3.  The applicant provides:

* Retired Reserve transfer orders, dated 14 September 1994
* Department of Veterans Affairs (VA) Form 21-0960J-1 (Kidney Conditions (Nephrology) Disability Benefits Questionnaire)
* medications summary
* letter from a Member of Congress, dated 7 November 2014

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 military records are not available for review.  His U.S. Army Human Resources Command Chronological Statement of Retirement Points shows:

* he was born on 25 June 1952
* he was commissioned as a Reserve officer in the U.S. Army Reserve on 25 February 1980
* he completed 14 years of qualifying service for retirement purposes

3.  Headquarters, U.S. Army Reserve Command, Orders 94-238-028, dated 13 September 1994, reassigned him to the Retired Reserve due to medical disqualification.

4.  There is no evidence showings he completed 15 or 20 years of qualifying service for retired pay purposes.

5.  He provided a VA Form 21-0960J-1, dated July 2013, showing he was diagnosed with glomerulonephritis in March 1989 and he had a kidney transplant in January 1994.

6.  A letter from the U.S. Army Human Resources Command to a Member of Congress, dated 15 September 2014, states:

	a.  A Reserve Soldier must have received a 15 or 20-year letter to be eligible to receive a Reserve retirement.  An audit of the applicant's military records shows he completed 14 years, 00 months, and 00 days of qualifying service.

	b.  The Office of the Chief, Army Reserve, indicated the Early Reserve Retirement Eligibility for Disabled Members of the Selected Reserve dates of eligibility began on 5 October 1994 and is not retroactive.  He was transferred to the Retired Reserve on 13 September 1994.  He is not eligible to receive a 15 or 20-year letter or a military retirement. 

7.  He provided a self-authored letter, dated 20 October 2014, which states:

* he is not requesting a 15 or 20-year letter
* he was ordered to retire due to medical disqualification, but did not receive a medical board
* he never requested to be retired
* it is unclear if his military service contributed to his kidney disease since he had and has no pre-existing risk factors for kidney disease
* he has been eligible for Medicare disability coverage since 1994
* the Early Reserve Retirement Eligibility for Disabled Members of the Selected Reserve provision was never considered in his case
* he retired 3 weeks before the law existed and it is unjust and unfair because it is not retroactive
* his intent was to serve 20 years
* he is willing to appear before the Board

8.  Public Law 103-337, dated 5 October 1994, established early Reserve retirement eligibility for Soldiers involuntarily separated from the Selected Reserve due to physical disability during the period 5 October 1994 through 30 September 1999 (later extended through 31 December 2001).  Eligibility is based on a minimum of 15 years of qualifying service toward Nonregular (Reserve) retirement.  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 23 October 1992 and ending 1 October 1999 to Soldiers who attained 15 years of retirement eligibility after 1 October 1991.

9.  Title 10, U.S. Code, sections 12731 through 12740, currently authorize retired pay for Reserve military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.

10.  Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers), chapter 6 (Transfer to and from the Retired Reserve), states eligible Reserve Soldiers who are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed, may request transfer to the Retired Reserve.

11.  Army Regulation 135-180 (Army National Guard and Army Reserve – Qualifying Service for Retired Pay Nonregular Service), paragraph 2-2 (Basic Qualifying Service Requirements), states to be eligible for retired pay at or after the age specified in paragraph 2-1 (Age Requirements), an individual need not have military status at the time of application, but must have completed a minimum of 20 years of qualifying service, or 15 years of qualifying service and less than 20 if the individual is to be separated because he or she has been determined unfit for continued Selected Reserve service.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends he was medically retired in 1994 and issued retirement orders, he was not issued retirement orders.  He was transferred to the Retired Reserve based on medical disqualification for retention in the Selected Reserve.  Transfer to the Retired Reserve is voluntary.

2.  His remaining contentions were carefully considered.  However, the Early Reserve Retirement Eligibility for Disabled Members of the Selected Reserve law does not apply in this case.  The applicant was reassigned to the Retired Reserve prior to enactment of the law authorizing early retirement.  In addition, he did not complete 15 years of qualifying service as required for eligibility under this law.  Therefore, there is no basis for granting his request for Early Reserve Retirement Eligibility for Disabled Members of the Selected Reserve.

3.  Since he did not complete 20 qualifying years of service, there is also no basis for granting him a 20-year Nonregular (Reserve) 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 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)                                         AR20140020137



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ABCMR Record of Proceedings (cont)                                         AR20140020137



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