IN THE CASE OF:	  

		BOARD DATE:	  29 October 2015

		DOCKET NUMBER:  AR20150003694 


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, the issuance of a Notification of Eligibility for Retired Pay at Age 60.

2.  The applicant states the Office of Personnel Management (OPM), the Department of Veterans Affairs (VA), and the Social Security Administration have granted him 100-percent service connected disability based on post traumatic stress disorder (PTSD) and lower back pain.  He further contends these are the same disabilities that led to his separation from the service.

3.  The applicant provides:

* Social Security Administration-Notice of Decision, dated 27 May 1994
* Physical Evaluation Board findings, dated 15 July 1996
* OPM Disability Retirement Approval Letter, dated 24 January 2002
* VA Decision Review, dated 18 March 2004, with allied documents
* DD Form 2656 (Data for Payment of Retired Personnel)
* U.S. Army Reserve (USAR) discharge orders and allied documents
* three DD Forms 214 (Report of Separation from Active Duty/Certificate of Release or Discharge from Active Duty)
* ARPC Form 249-E (Chronological Statement of Retirement Points), dated 16 December 2011

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (10 USC), 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.  A review of applicant’s record shows that he served in the:

* Tennessee Army National Guard from 23 March 1979 to 
6 March 1981
* Ohio Army National Guard from 7 March 1981 to 20 July 1992

3.  On 13 January 1996, he was notified that he was found medically unfit for retention in the USAR.  Upon notification he elected consideration for a waiver of his medical condition by the Medical Review Authority at the USAR Personnel Center, St. Louis, MO and, in the event the waiver was disapproved, he requested a transfer to the Retired Reserve.

4.  The available record is void of a document approving or disapproving his request for a waiver; however, on 20 September 1996, he was discharged from the USAR with disability severance pay and with a 20-percent disability rating.

5.  The applicant applied to the ABCMR in 1999 for correction of his record to show he was retired due to physical disability.  The Board found that the applicant was “discharged” in error and as a result of the Board’s decision his original orders were revoked.  Headquarters, USAR Command, issued Orders 00-096-013, dated 5 April 2000, transferring him to the Retired Reserve, effective 20 September 1996.

6.  The applicant provided an ARPC Form 249-E, dated 16 December 2011, which shows he:

* served in the Regular Army (RA) from 23 March 1979 to 1 June 1991
* served in the USAR from 2 June 1991 to 20 September 1996
* was transferred to the Retired Reserve on 21 September 1996
* completed the last 4 years and 2 months of service while a member of the USAR 
* completed 15 years, 5 months, and 29 days of qualifying service towards non-regular retirement

7.  A Chronological Statement of Retirement Points, prepared by the U.S. Army Human Resources Command, Retirement Services Section, dated 16 October 2015, shows the applicant served in the ARNG from 23 March 1979 to 20 July 1992 (this period of service is credited as RA service on the retirement points statement provided by the applicant) and he completed 14 years, 5 months, and 29 days qualifying for retirement (shown as 15 years, 5 months, and 
29 days on the retirement points statement provided by the applicant).

8.  He also provides documents showing OPM, the VA, and the Social Security Administration have all found his medical conditions, to include PTSD, warrant a 100-percent disability rating or retirement.

9.  Sections 12731 through 12738 of 10 USC, authorize retired pay for Reserve component (RC) 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.  The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.

10.  Title 10 USC, section 12731a was the temporary special retirement qualification authority.  A revision dated 5 October 1994 provided that, during the period 1 October 1991 through 30 September 1999 (later extended and later still made permanent), a member of the Selected Reserve who completed at least 15, and less than 20, years of qualifying service and who no longer met the qualifications for membership in the Selected Reserve solely because the member was unfit because of physical disability, and upon the request of the member, could be transferred to the Retired Reserve and treated as having met the service requirements and be provided with the notification required if he completed at least 15 and less than 20 years of service.

11.  The authority provided by section 12731b, 10 USC (Public Law 103-337) currently exists as a force reduction/transition initiative in section 12731a(c)(3) for the period beginning 1 October 1991 and ending 30 September 2001 for those members who completed at least 15 years of service as of 1 October 1991.  The individual must also meet the requirement of having performed the last 6 years of qualifying service in the RC as outlined in 10 USC, section 1331(a).  The intent of the new subsection was to make the authority permanent. 
12.  Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The Army rates conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two government agencies, operating under different policies, may arrive at different disability ratings based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, the issuance of a Notification of Eligibility for Retired Pay at Age 60.

2.  The fact that he was determined to be 100-percent disabled due to PTSD and other medical conditions by other government agencies is not in question.  However, the Army’s guidelines for determining unfitness are different from agencies such as the VA, OPM, and the Social Security Administration.  The Army’s rating is dependent on the severity of the unfitting condition at the time of separation or discharge.

3.  By law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for nonregular retirement.  However, a member of the Selected Reserve who is medically disqualified for continued service in the RC may be considered as having met the service requirement and may be issued a notification of eligibility if the member completed at least 15 years, but less than 20 years, of qualifying service for nonregular retirement purposes and served the last 6 years of his or her qualifying service as an RC Soldier.

4.  The evidence of record confirms the applicant completed less than 15 years (14 years, 5 months, and 29 days) of qualifying service toward nonregular retirement at the time he was discharged for medical unfitness.  He did serve the last 6 years of his qualifying service as an RC Soldier.  However, he did not meet one of the requirements needed to be eligible for a 15-year nonregular 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)                                         AR20150003694



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ABCMR Record of Proceedings (cont)                                         AR20150003694



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