MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:            24 February 1999 
	DOCKET NUMBER:   AC98-13104
                                              AR1998013848

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Barbara J. Ellis		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That the records of her father, a former service member (FSM), be corrected to show that he was either retired by length of service or by reason of physical disability.

APPLICANT STATES:  That her father served for 19 years and 6 months before he was honorably discharged.  However, he should have been retired for length of service or physical disability.  She further states that had he served in the Navy or Marine Corps, he would have been Retired.

EVIDENCE OF RECORD:  The FSM's military records show:

The FSM was inducted on 27 December 1950 and remained on active duty through a series of continuous reenlistments.  He was first promoted to the pay grade of E-5 on 25 September 1953.

During the course of his career he was reduced in grade several times and attained the pay grade of E-5 twice.  Nonjudicial punishment was imposed against him on at least five occasions for offenses ranging from AWOL, disrespect towards a commissioned officer, and breaking restriction.  He was also convicted by a special and a summary court-martial for multiple AWOL offenses.

Although not fully explained in the available records, his records show that he was extended past his expiration of term of service (ETS) on 24 March 1969 at Fort Dix, New Jersey, for the purpose of continuing medical care or hospitalization and, if eligible, subsequent separation or retirement for physical disability.

The record is silent as to the specific reason for his extending past his ETS and his medical records are not present in the available records.  However, his records show that he was honorably discharged in the pay grade of E-3 on 3 June 1969 due to ETS.  He had served 17 years, 11 months, and 10 days of total active service and had 135 days of lost time due to AWOL and confinement.

A review of his records failed to reveal that he was approved for subsequent reenlistment prior to his ETS.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
2.  In the absence of evidence to the contrary, it must be presumed that the FSM was found medically fit for separation at the time of his discharge and  therefore was not qualified for a disability separation. 

3.  Inasmuch as reenlistment is a volitional act on the part of the individual soldier and in light of the fact that he did not reenlist, the Board finds that he was properly discharged due to the expiration of his contract.

4.  At the time of the FSM’s discharge, there were no provisions for retirement based on length of service of less than 20 years.  While such a provision does exists under today’s standards, it applies only to selected individual specialties and grades, and the provisions for early retirement under today’s standards are not retroactive.

5.  The Board also notes that had the FSM wished to pursue his military career, he had the option to apply for a waiver of lost time in order to enlist in the Regular Component or the USAR at a later date in order to attain retirement eligibility.  

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__cmf___  ___mdm_  __be____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-13104/AR1998013848	
SUFFIX		
RECON	 	
DATE BOARDED	1999/02/24	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1969/06/03	
DISCHARGE AUTHORITY	AR 635-200, CH 4	
DISCHARGE REASON	ETS	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  136.000	RETIREMENT	
2.		
3.		
4.		
5.		
6.