MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 October 1999                   
	DOCKET NUMBER:   AR1999029041

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. George D. Paxson		Member	
	Ms. Kathleen A. Newman		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 he be determined to be eligible for a 15-year Reserve Component retirement.  

APPLICANT STATES:  That he was separated from the West Virginia Army National Guard because of failure to meet physical procurement standards on  22 June 1990.  He was transferred to the U. S. Army Reserve Control (USAR) Group (Reinforcement) with a military service obligation until 17 January 1992.  
While assigned to the USAR, he drilled with a unit for retirement points only from June through November 1991.  He was discharged from the USAR on               21 January 1992.

EVIDENCE OF RECORD:  The applicant's military records are not available.  Information contained herein was obtained from alternate sources.

The applicant served on active duty from June 1956 until June 1958.  He served in the Army National Guard from 18 January 1974 until 22 June 1990 when he was separated due to failure to meet physical procurement standards.  At this time he had completed 17 qualifying years towards a reserve retirement.   He still had a contractual obligation to complete so he was transferred to the USAR Control Group (Reinforcement). 

In June 1991, while still a member of the USAR Control Group (Reinforcement), the applicant was attached to the 304th Military Police Company for training, retirement points only.  He attended regularly-scheduled drills from June through November 1991.  He was discharged from the USAR on 21 January 1992.

Title 10. U.S. Code, section 12731a is the temporary special retirement qualification authority.  A revision dated 5 October 1994 provided that, during the period 1 October 1991 through 30 September 1999, a member of the Selected Reserve who had 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, may be transferred to the Retired Reserve.  Notification to the U.S. Army Reserve of this benefit was not given until 1 July 1996.

Army Regulation 140-10 defines Ready Reserve Control Groups and the Selected Reserve.  The Ready Reserve consists of soldiers assigned to Troop Program Units (TPUs) and USAR control groups.  The Individual Ready Reserve consists of pretrained individual soldiers assigned to various control groups for control and administration who are available for mobilization in time of war or a national emergency declared by Congress.  The control groups are Annual Training, Reinforcement, Officer Active Duty Obligor and Dual Component.  Within the Ready Reserve there is a Selected Reserve which consists of TPUs and individuals available for mobilization in time of war or national emergency, or order to active duty on the call of the President.  The Selected Reserve consists of soldiers assigned to TPUs, Control Group (Individual Mobilization Augmentation) and Control Group (Active Guard Reserve).

In the processing of this case, an advisory opinion was obtained from the National Guard Bureau (NGB).  The NGB noted that Public Law 103-337, section 517, dated 5 October 1994 established special benefits for soldiers involuntarily separated from the Selected Reserve due to physical disability.  Included was retired pay at age 60.  The applicant met the established requirements – he has over 17 years of qualifying service, he served his last six years in the Reserve Components, and he was found medically unfit for continued service in the Selected Reserve and separated in January 1992.  Based on the provisions of law, the intent of Congress and fairness and equity, the NGB supported his request for a Selected Reserve medical retirement.

A copy of the opinion was provided to the applicant for comment.  He did not respond within the given time frame.

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, it is concluded:

1.  The Board empathizes with the applicant’s concern that his reserve military career was interrupted due to his failure to meet physical fitness standards. However, the temporary special retirement qualification authority provided only for a 15-year retirement for members of the Selected Reserve who separated during the period 1 October 1991 through 30 September 1999, who no longer met the qualifications for membership in the Selected Reserve solely because the member was unfit because of physical disability,  

2.  Notwithstanding the advisory opinion, the applicant was separated from the Selected Reserve on 22 June 1990, 15 months prior to the earliest applicability of the law.  

3.  The applicant was a member of the Ready Reserve from 23 June 1990 until his discharge from the USAR on 17 January 1992.  Although the date of his final discharge was within the period covered by the temporary special retirement qualification authority, the Ready Reserve was not a category covered by the authority.

4.  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___  __gdp___  __kan___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999029041	
SUFFIX		
RECON		
DATE BOARDED	19991027	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	135.03	
2.		
3.		
4.		
5.		
6.