IN THE CASE OF:	  

		BOARD DATE:	  23 July 2015

		DOCKET NUMBER:  AR20140020617 


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 15-year letter so that he may retire from the U.S. Army Reserve (USAR) at age 60.

2.  The applicant states, in accordance with Title 10, U.S. Code, Section 12731b and Army Regulation 140-10 (Army Reserve - Assignments, Attachments, Details, and Transfers), he is authorized early retirement based on completing  17 years, 11 months, and 21 days of service.  The applicant states he was medically disqualified from service not as the result of his own misconduct, and he received orders which authorized him early retirement.  

3.  The applicant provides:

* an extract of Title 10, U.S. Code
* three memoranda
* a letter
* DD Form 2808 (Report of Medical Examination)
* Medical Record
* DA Form 3349 (Physical Profile)
* Orders 06-349-00011
* Army Human Resource Command (AHRC) Form 249 (Chronological
     Statement of Retired Points)




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 was born on 25 July 1954.  On 25 January 1989, he was appointed a second lieutenant in the Army National Guard.  He served in various assignments and he was promoted to the rank of major.

3.  On 27 February 1997, he was transferred to the USAR Personnel Center (Reinforcement).  On 17 February 2005, he was promoted in the USAR to the rank of colonel.

4.  On 10 July 2005, upon a review of his medical conditions, the applicant was found medically unfit for retention in the USAR in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  Due to his medical disqualification, he requested a non-line of duty physical evaluation board (PEB) to review his case solely for determination of fitness for continued service in the Reserve component.  In the event the PEB determined he was unfit for duty, he requested to be transferred to the Retired Reserve.

5.  On 3 August 2006, after a review of his medical records, the Physical Review Board, Human Resources Command (HRC), St. Louis, MO, determined he was not qualified for retention in the USAR.  

6.  On 21 September 2006, the final Command Surgeon Review of the physical examination of the applicant was completed.  On 15 December 2006, Orders       06-349-00011, issued by Headquarters, Army Reserve Medical Command, assigned the applicant to the Retired Reserve effective 14 January 2007, based on being found medically disqualified – not as the result of his own misconduct.  The additional instructions of his orders state the Soldier is authorized early retirement under Title 10, U.S. Code, section 12731b.

7.  His ARHC Form 249 shows he completed 17 years, 11 months, and 21 days of qualifying years of service toward non-regular retirement. 

8.  The applicant subsequently applied for retired pay at age 60.  However, on     7 October 2014, HRC officials notified him that:

	a.  To be eligible for retired pay at age 60, under Title 10, U.S. Code, section 12731-12737, a Reserve Soldier or former Reserve Soldier must have completed 20 qualifying years of service, the last 8 of which must have been in a Reserve component.

	b.  Service in an inactive Reserve section, such as the Retired Reserve, is not creditable for retirement purposes.  Since 1 July 1949, a Reserve Soldier must have earned at least 50 retirement points per year for that service to be creditable for retirement.  An audit of his military records shows he completed      17 years, 11 months, and 21 days of qualifying years of service toward non-regular retirement.  Accordingly, he was ineligible to receive retired pay.  
 
9.  Army Regulation 140-10, paragraph 6-1, provides that Reserve Soldiers may request transfer to the Retired Reserve if they 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.

10.  Title 10, U.S. Code, section 12731, provides the age and service requirements necessary to qualify for non-regular (Reserve) retired pay at age 60.  It states individuals are eligible to receive retired pay at age 60 upon application if they have completed 20 or more years of qualifying service while a member of a Reserve Component.  This section states the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay under this chapter.

11.  Title 10. U.S. Code, 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) 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. 


DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, Reserve Component members normally are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement.  A qualifying year of service for non-regular retired pay is a full year during which a Regular or Reserve member is credited with a minimum of 50 retirement points.  

2.  However, at the time the applicant was separated, a member of the Selected Reserve who was medically disqualified for continued service in a Reserve Component could be considered as having met the service requirement and could be issued a Notification for Eligibility for Non-Regular Retired Pay at Age 60, 15-Year Letter, if the member completed at least 15 years, but less than 20 years of qualifying service for non-regular retirement purposes. 

3.  The evidence of record in this case confirms the applicant completed a total of 17 years, 11 months, and 21 days of qualifying service for non-regular retirement before he was transferred to the Retired Reserve in 2007 for medical disqualification.  All of his 17 qualifying years of service were in a Reserve Component.  As such, he met the statutory requirement for receipt of a 15-year letter. 

4.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

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:

The Board determined the evidence presented is 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 showing he met the 15-year eligibility criteria for Reserve retired pay and showing his application for retired pay at age 60 was accepted in a timely manner to be effective retroactive to 25 July 2014, the date he turned age 60.




      __________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)                                         AR20140020617





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ABCMR Record of Proceedings (cont)                                         AR20140020617



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