MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:            21 September 2000                    
	DOCKET NUMBER:   AR2000039023

	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. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston 		Chairperson	
	Mr. Curtis L. Greenway 		Member	
	Mr. Eric N. Andersen 		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:  In effect, the applicant requests retired pay based on his years of service in the Reserve components.  

APPLICANT STATES:  That he should not have been transferred to the Inactive National Guard (ING) until the day before he reached age 60, at which time he should have been transferred to the Retired Reserve with retired pay.  In January 1990 he was injured on his civilian job with the Corps of Engineers, and retired with a disability.  In April 1991 he had a fusion at C4-C5 and a few years later, right shoulder surgery and ulnar nerve surgery to his right arm.  He was unable to perform his assigned duties as a cook with the Army Corps of Engineers.  He informed his platoon sergeant that he was injured.  He did try to drill, but had to leave early.  He states that he has over 16 years of service and should be compensated because his career was shortened because of his disability. 

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

The applicant’s retirement points history statement, which he submits with his application, shows that he had 12 years of active service, in the Regular Marine Corps and in the Army National Guard.  He also had service in the Marine Corps Reserve; and the Army National Guard and the Army Reserve as a unit member. He served in the Army Reserve Control Group (Reinforcement), the Inactive National Guard, and the Navy Reserve.  His military service began in 1957 and ended with his discharge in 1992.  His retirement points history statement for that 35 year period shows that he had periods of non military service, and periods of service in which he did not have a qualifying year of service for retired pay, i.e., 50 points earned during a retirement year.  That statement shows he has          16 years and 3 months of qualifying service for retired pay.  

A 22 February 1989 report of medical examination shows that the applicant was medically qualified for enlistment in the Army National Guard with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history he furnished for the examination, the applicant stated that he was in good health, that he was taking no medications, and that he did not abuse alcohol or drugs.

The applicant’s record shows that his last enlistment in the Army National Guard was for 3 years on 25 September 1989.

A 20 February 1990 medical report indicates that the applicant’s condition was diagnosed as right shoulder pain, rotator cuff tendinitis, upper back pain, and degenerative arthritis (mild) thoracic.  That report indicates that he was requesting a complete disability from his job [with the Corps of Engineers].  

A 24 May 1990 notification of personnel action shows that the applicant was retired from his civilian job as a cook because of disability.

In a 25 May 1990 memorandum, the applicant’s unit commander informed the applicant that he had recommended that the applicant receive a medical evaluation to determine if he was fit for military service. 

On 22 July 1990 the applicant was assigned to the Inactive National Guard.  

A 26 March 1991 doctor’s statement shows that the applicant was reevaluated for cervical and bilateral arm pain plus paresthesia of the left arm and headaches.  His condition was diagnosed as herniated cervical disc.

A 2 July 1991 doctor’s statement shows that the applicant was reevaluated [three months post-operatively], and that the applicant stated that he had mild cervical and right shoulder pain.  Examination revealed a mild degree of limitation of motion in all directions with focal muscle spasm in the interscapular region.  There was mild right rotator cuff pain.  The applicant was advised to avoid activities, which required him to lift, push, or pull greater than 50 pounds or bend repeatedly, flex or hyperextend the neck.  

On 29 July 1991 an official of the Louisiana National Guard informed the applicant, in response to his query, that  a soldier who does not have                  20 qualifying years of service is not eligible for retired pay at age 60, and since the applicant did not have the required years of service, he did not accrue any retired benefits.

Documents in the applicant’s record show that he was notified on                      22 February 1991 of the requirement for ING soldiers to participate in a muster in April 1991.  He was similarly informed on 13 April 1992.

The applicant was discharged from the Army National Guard of Louisiana and as a Reserve of the Army on 24 September 1992.

Army Regulation 135-180 implements statutory authorities governing the granting of retired pay to soldiers and former Reserve Component soldiers.  Paragraph    2-1 of that regulation states, in pertinent part, that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of his qualifying service as a Reserve component soldier.

Paragraph 2-8 of that regulation describes qualifying service, as pertains to this case, as service performed as an enlisted person in an active status in a Reserve component or in active federal service.  After 30 June 1949, a reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service.
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.  The applicant was apparently transferred to the ING because of his inability to attend training assemblies with his National Guard unit.  He himself stated that he had medical problems.  There is no evidence, however, that indicates that the applicant received a medical examination to determine his fitness for retention in the service.  Nevertheless, the applicant was aware of his status in the ING as shown by the notices he received of pending musters.  He was discharged from the National Guard and as a Reserve of the Army upon the termination of his enlistment agreement.

2.  The applicant had 35 years to obtain 20 qualifying years of service for retired pay at age 60.  He did not do so and does not have 20 qualifying years of service.  Consequently, he is not entitled to retired pay.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

4.  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.

5.  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

___ena__  ___jhl___  ___clg___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000039023	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000921	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  341	136.00	
2.		
3.		
4.		
5.		
6.