MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           23 June 1999
	DOCKET NUMBER:   AR1999016445

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Gary F. Geraets		Member	
	Mr. Lester Echols		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 her Personnel Status code of JN (Reassignment of members of the Ready Reserve to the Retired Reserve, having been found medically disqualified for entry on active duty, not as a result of own misconduct) be changed to show XM (Assignment of a member to the Retired Reserve for the Selective Reserve Transition Program–Early Qualification for Retired Pay at Age 60 (physical disability)).

APPLICANT STATES:  That she was transferred to the Retired Reserve on 2 April 1993 with a Personnel status code of JN.  She also states that based on her ARPC Form 249-2-E and the memorandum dated 1 July 1996, Early Reserve Retirement Eligibility for Disabled Members of the Selected Reserve that she is eligible for early retirement.  In support of her application she submits a copy of ARPC Form 249-2-E (Chronological Statement of Retirement Points), a
copy of orders dated 2 April 1993 (assignment to the United States Army Retired Reserve) and a copy of memorandum dated 1 July 1996 (Subject:  Early Reserve Retirement Eligibility for Disabled Members of the Selected Reserve).

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

The applicant enlisted in the USAR on 7 June 1975 for a period of 3 years 
as an administrative specialist.  She was ordered to Active Duty for Training (ADT) on 1 February 1976 and was released from ADT on 17 May 1976 and returned to the control of the USAR.  She continued to serve in the USAR through a series of continuous reenlistments.

The facts and circumstances pertaining to the applicant’s discharge are not present in the available records.  However, orders dated 2 April 1993 shows that she was released from her current assignment and assigned to the United States Army Retired Reserve on 2 April 1993, under the provisions of Army Regulation 140-10, due to medical disqualification not as a result of her own misconduct.

On 1 July 1996, the Office of the Chief, Army Reserve (OCAR) published a memorandum on guidance for separation for early reserve retirement, subject:  Early Reserve Retirement Eligibility for Disabled Members of the Selected Reserve.  It stated that members of the Selected Reserve who are subject to involuntary separation from the Selected Reserve solely because they are unfit due to a medical disability, may elect early qualification for retired pay at age 60 provided they transfer to the Retired Reserve.  Qualification dates for eligibility began on 5 October 1994 and continued through 30 September 1999.  Eligibility for this benefit is contingent on the following; (a) the soldier is not eligible for an immediate annuity under any purely military retirement plan, (b) As of 1 October 1991, or after that date and before 1 October 1999, the member has completed at least 15, and less than 20 years of service computed under Section 12732 of Title 10, United States Code, (c) the soldier is in the Selective Reserve and has been determined unfit for continued service in the Selected Reserve because of physical disability.  Physical disability is a medical condition defined in AR
40-501, chapter 3, which renders a member, unfit for military service.  (d) The disability is not the result of the soldier’s intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention as established by the Secretary of the Army.  The benefit is not authorized if the disability is incurred or aggravated during a period of unauthorized absence.  
(e) The soldier is not qualified for retirement under this policy if the member qualifies for disability retirement under chapter 61 of Title 10, United States Code.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the OCAR.  A copy of the advisory opinion was forwarded to the applicant on 30 March 1999 for comment or rebuttal.  However, she failed to submit a reply to the advisory opinion as of 18 June 1999.

OCAR indicated that the Early Reserve Retirement Eligibility for Disabled Members of the Selected Reserve dates of eligibility began on 5 October 1994 and is not retroactive.  The applicant was discharged prior to the program being implemented and the applicant is not eligible for early retirement at age 60.

Army Regulation 140-10, in effect at the time set forth the basic authority for the assignment, attachment, detail and transfer of USAR soldiers.  Chapter 6 of the regulation relates to the transfer to and from the Retired Reserve and states, in pertinent part, that a member must request transfer if they are medically disqualified not as a result of own misconduct, for retention in an active duty status or entry on active duty (AD), regardless of the total years of service completed.

Army Regulation 680-29 governs Military Personnel, Organization, and Type of Transaction Codes.  Chapter 4 covers Types of Transaction code used in the 
exchange of personnel data required by AR 680-5.  Section VI contains the Personnel Status Codes for USAR Personnel Not on Active Duty.  It states in
pertinent part that code JN will be used for reassignment of members of the Ready Reserve to the Retired Reserve, having been found medically disqualified for entry on active duty, not as a result of their own misconduct

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

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize her rights.
2.  The applicant has failed to show through the evidence submitted with her application or the evidence of record that her Personnel Status code for USAR personnel not on active duty was incorrect.

3.  It is apparent that the applicant had completed at least 15 but less than 
20 years of qualifying service, but was transferred to the United States Army Retired Reserve due to medical disqualification.

4.  The Early Reserve Retirement Eligibility for Disabled Members of the Selected Reserve option began 5 October 1994 and is not retroactive.  The applicant was discharged on 2 April 1993, which was prior to the program being implemented and made her eligible for early retirement at age 60.

5.  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.

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

MKP____  GFG____  LE_______  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999016445	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990623	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19930402	
DISCHARGE AUTHORITY	AR 140-10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  341		
2.  343		
3.  344		
4.		
5.		
6.