PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           24 October 2000
	DOCKET NUMBER:   AR2000034949

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

	Mr. Carl W. S. Chun		Director	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson 		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. John T. Meixell		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests he be determined to be eligible for a 15-year Reserve Component retirement.

3.  The applicant states, in effect, that he was separated as medically unfit for retention from the Arkansas Army National Guard with 16 years, 11 months, and 27 days of creditable service for retired pay.  Under Title 10 USC 12731 and guidance published by the National Guard Bureau, he was issued a notice of eligibility for retired pay at age 60 with 15 years of service.  However, when he applied to the Army Reserve Personnel Command (AR-PERSCOM), he was denied retired pay benefits.

4.  The applicant’s military records show that, with prior Reserve Component and Regular Army service, he enlisted in the Arkansas Army National Guard on 7 September 1978.  He served until he was honorably discharged from the Army National Guard and as a Reserve of the Army on 6 April 1992 by reason of being medically unfit for retention standards.

5.  The Office of The Judge Advocate General (OTJAG), in 1995, provided a legal opinion to the National Guard Bureau stating that Title 10, U. S. Code, section 12731a(a)(1) extended the Early Reserve Retirement Eligibility for Disabled Members to soldiers who attained 15 years of retirement eligibility as of 1 October 1991 even though the date of the provision was not added until 5 October 1995.  (The provision was actually added 5 October 1994.)

6.  Apparently as a result of the Office of The Judge Advocate General opinion, the Arkansas National Guard issued the applicant a notification of eligibility for retired pay at age 60.  The applicant then completed DD Form 108 (Application for Retired Pay Benefits), DD Form 2656 (Pay Identification), and DD Form 1883 (Survivor Benefit Plan Certificate) and mailed his packet to AR-PERSCOM on 11 June 1999.  On 1 July 1999, AR-PERSCOM notified the applicant that he was not eligible for retirement benefits because “[his] service does not fall within the parameters of the cited law [10 USC].”

7.  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 has completed at least 15, and less than 20, years of qualifying service and who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, and upon the request of the member, may be transferred to the Retired Reserve.

CONCLUSIONS:

1.  The Board concludes that an injustice occurred in this case.

2.  The applicant was discharged from the Army National Guard and the U. S. Army Reserve on 6 April 1992 due to being medically unqualified for retention.  At that time, he had completed 15 qualifying years for a reserve retirement, the last 13 of those years in a Reserve Component.

3.  In April 1992, there was no provision for an early reserve retirement due to medical disability.  However, the law was changed on 4 October 1994 and was made retroactive to 1 October 1991.

4.  As a result of a legal opinion from the Office of The Judge Advocate General to the National Guard Bureau, the Arkansas National Guard provided a notification of eligibility for retired pay at age 60 to the applicant.  Upon receipt of his notification letter on 27 July 1998, the applicant applied for retired pay at age 60 with 15 years of service.  Inexplicably, AR-PERSCOM rejected his application.

5.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the applicant was discharged from the Arkansas Army National Guard and as a Reserve of the Army on 6 April 1992, transferred to the Retired Reserve on the following day in accordance with the Temporary Special Retirement Qualification Authority, and is entitled to all benefits thus conferred.

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __esc___  __jtm____  DENY APPLICATION

		__Margaret K. Patterson__
		        CHAIRPERSON

INDEX

CASE ID	AR2000034949	
SUFFIX		
RECON		
DATE BOARDED	20001024	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1.	136.0500	
2.		
3.		
4.		
5.		
6.