IN THE CASE OF:	  

		BOARD DATE:	  6 October 2015

		DOCKET NUMBER:  AR20150000642 


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 restoration of his rank/grade to sergeant (SGT)/E-5 and additional service credit to show he had over 20 years of creditable service.

2.  The applicant states his unit erroneously carried him as absent without leave (AWOL) while he was awaiting a medical discharge.  He had a severely degenerated hip that required replacement surgery.  The medical staff told him he was medically unfit for duty and not to attend drills.  His unit was supposed to place him in the inactive Army National Guard (ARNG) pending his discharge instead of carrying him as AWOL and reducing his pay grade.  

3.  The applicant provides the following documents:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 30 August 1973
* Orders Number 69-2, dated 19 December 1986
* DA Form 2166-7 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the rated period December 1998 through November 1999
* DA Form 4700 (Supplemental Medical Record), dated 2 January 2003
* ARNG Current Annual Statement, dated 7 January 2013
* DA Form 2-1 (Personnel Qualification Record – Part II)
* Notification of Medical Disqualification, dated 12 February 2003
* Orders Number 087-014, dated 28 March 2003
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Orders Number C02-391261, dated 13 February 2013
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 record contains a DD Form 214 that shows he served in the U.S. Marine Corps, on active duty, from 7 September 1971 to 30 August 1973.  He was credited with 1 year, 11 months and 24 days of net active service during that period, and with 26 days of other service.  His total service was listed as      2 years and 20 days.  He was honorably released to the Marine Corps Reserve.

3.  He enlisted in the New York ARNG (NYARNG) on 7 January 1985, in the rank/grade of private first class (PFC)/E-3, and appears to have served through a series of reenlistments or extensions of enlistment.

4.  Orders Number 69-2, issued by the NYARNG on 19 December 1986, promoted him to the rank/grade of SGT/E-5 with an effective date of 1 January 1987.

5.  Orders Number 314-1, issued by Headquarters, 152d Engineer Battalion, NYARNG on 9 November 2000, reduced him in rank/grade from SGT/E-5 to specialist (SPC)/E-4 for inefficiency (AWOL), effective 10 November 2000.

6.  Orders Number 7-1, issued by the Support Platoon, Headquarters, 152d Engineer Battalion, NYARNG on 10 November 2000, reduced him in rank/grade from SPC/E-4 to PFC/E-3 for inefficiency due to continued and willful absence, effective 10 November 2000.

7.  Orders Number 8-1, issued by the Support Platoon, Headquarters, 152d Engineer Battalion, NYARNG on 11 November 2000, reduced him in rank/grade from PFC/E-3 to private (PV2)/E-2 effective 11 November 2000 for inefficiency due to continued and willful absence..

8.  His record contains a DA Form 4700, dated 2 January 2003, showing he had been diagnosed with perthes hip disease, hypertension, and overweight.  

   a.  On 7 September 2002, he was found unfit at a fitness for duty examination.  The orthopedic physician's assistant who conducted the examination stated the "Soldier is not suitable for military retention."  

   b.  A letter dated 21 May 2002, from Northtowns Orthopedics, PC, shows Dr. DM noted that the applicant's "left hip full extension, flexes to 95%; no internal rotation, and 25% of external rotation."  Dr. DM diagnosed him with "left hip pain secondary to Perthes Disease [and] recommend that he ceases duties with the Army."  
   
   c.  He was recommended for a medical retirement and the Chief, Medical Standards Branch, the Deputy State Surgeon, and the State Surgeon concurred with this recommendation.

9.  Orders Number 087-014, issued by the NYARNG on 28 March 2003, discharged him from the ARNG and assigned him to the Retired Reserve by reason of his early qualification for retired pay at age 60 due to his involuntary medical discharge.  His rank is shown as PV2.  

10.  His NGB Form 22 lists his rank/grade as PV2/E-2 and shows he was honorably discharged from the NYARNG on 26 April 2003.  He was credited with:

* 18 years, 3 months, and 20 days of net service during the period covered by his NGB Form 22
* 8 years, 6 months, and 17 days of prior Reserve Component service
* 1 year, 11 months, and 24 days of prior active federal service
* 28 years, 10 days, and 1 day of total service for pay
* 19 years and 20 days of total service for retired pay  

11.  His record contains an ARNG Retirements Point History Statement, dated     4 March 2004, which covered 35 periods from 11 August 1971 to 26 April 2003.  During this time frame he completed 19 qualifying years of service for retired pay, meaning he earned 50 or more retirement points that retirement year. He earned less than 50 points during each of the remaining periods.  

12.  His record contains a Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-Year Letter), dated 11 January 2013, which shows he was eligible to apply for retirement at age 60 upon his application.

13.  Orders Number C02-391261, issued by the U.S. Army Human Resources Command on 13 February 2013, directed his retirement and placement on the retired list in the rank/grade of PV2/E-2, effective 27 November 2012.  

14.  Title 10, U.S. Code, sections 12731 through 12739, authorizes retired pay for Reserve Component military service.  Under this law, a Reserve Soldier must complete the minimum qualifying years [20 or 15] of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.  The term "good years" is an unofficial term used to mean years in which 50 or more retirement points are earned during each retirement year and which count as qualifying years of service for retired pay at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his unit erroneously carried him as AWOL while he was awaiting a medical discharge as a result of a failed physical exam.  

	a.  He was reduced from SGT/E-5 to specialist (SPC)/E-4 for inefficiency for AWOL, effective 10 November 2000; from SPC/E-4 to PFC/E-3 for inefficiency due to continued and willful absence, effective 10 November 2000; and from PFC/E-3 to private (PV2)/E-2 for inefficiency due to continued and willful absence, effective 11 November 2000.

	b.  The evidence of record shows he was found unfit at a fitness for duty examination on 7 September 2002 and recommended for a medical discharge/retirement on or about 2 January 2003.

	c.  His last reduction for AWOL was almost 2 years prior to the date he was found unfit at a fitness for duty examination.

2.  There is no evidence of record and the applicant has not provided any evidence that shows he was erroneously carried as AWOL.

3.  In order to qualify for a good year for retirement a Soldier must earn 50 or more retirement points during that retirement year.  

	a.  The evidence of record shows that the applicant served in the military for more than 20 years, but only completed 19 qualifying years of service creditable for retired pay, meaning he earned 50 or more retirement points that year.  

	b.  He earned less than 50 points on each of the remaining periods, and as a result, he was not credited with a good year towards retirement during those periods.

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)                                         AR20150000642





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ABCMR Record of Proceedings (cont)                                         AR20150000642



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