PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 August 2000                   
	DOCKET NUMBER:   AR2000041608

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. John Saputo		Member	
	Ms. Karen A. Heinz		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, in effect, that his records be corrected to show that he was retired under the provisions of Public Law 103-337, section 517 (15-year retirement law) with a waiver for the (temporary) 6-year requirement to have served in a Reserve Component prior to separation so as to be eligible for retired pay and benefits at age 60. 

3.  The applicant states that he was diagnosed with Type II Diabetes Mellitus in October 1998.  Because of this disease and the progressive degeneration of his bodily functions, he was found medically unfit for continued service in the Army National Guard.  If he were medically able, he would have continued to serve in the Army National Guard until he earned 20 years qualifying service for retirement and would have satisfied the last 6 years qualifying Reserve Component service requirement.  

4.  The applicant’s military records show that he was born on 14 October 1951.  He served in the Regular Army from 14 July 1983 until 29 September 1995 when he was separated in pay grade E-5 upon the completion of his required active service.  He enlisted in the Army National Guard on 30 September 1995.

5.  On 26 October 1998, the applicant was diagnosed with Diabetes Mellitus.  
On or about 12 March 1999, a Medical Duty Review Board determined that he was not qualified for continued service in the Washington Army National Guard.  He appealed the findings of the board on 26 March 1999.  On or about               11 February 2000, another Medical Duty Review Board determined that he was not qualified for continued service in the Washington Army National Guard.

6.  On or about 11 April 2000, the applicant was hospitalized with severe pneumonia, respiratory failure, and acute liver inflammation.  His prognosis was unclear at that time.

7.  On 31 July 2000, the applicant was discharged from the Army National Guard. An Army National Guard annual statement of retirement points shows he had completed 16 qualifying years for non-regular retired pay, his last 4 qualifying years being in a Reserve Component.  

8.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U. S. Code by adding section 12731b, (Special rule for members with physical disabilities not incurred in line of duty).  Section 12731b(a) states that a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 and less than 20 years of service.

9.  The authority provided by section 12731b, Title 10, U. S. Code (Public Law 103-337) currently exists as a force reduction/transition initiative in section 12731a(c)(3) for the period beginning 1 October 1991 and ending 30 September 2001 for those members who completed at least 15 years of service as of           1 October 1991.  The individual must also meet the requirement of having performed the last 6 years of qualifying service in the Reserve Components as outlined in Title 10, U. S. Code, section 1331(a).  The intent of the new subsection was to make the authority permanent.  

10.  In the processing of this case, an advisory opinion was obtained from the National Guard Bureau (NGB).  NGB recommended approval of the applicant’s request, noting that the 6-year rule was intended to prevent someone from leaving active duty and serving a short period of time in the Reserve Components before qualifying for retired pay.  It was not designed to deny reserve retirement benefits to Selected Reserve soldiers who, through no fault of their own, were found medically unfit for continued service.

11.  The advisory opinion was provided to the applicant for comment.  He did not respond within the given time frame. 

CONCLUSIONS:

1.  The applicant was found to be medically disqualified for continued service in the Army National Guard in 1999 after completing more than 15 years of qualifying service towards Reserve Component retired pay at age 60.  The Board notes that he was only 47 years old at the time and concludes that it is reasonable to presume that had he been medically fit he would have continued his National Guard service and thereby have met the requirement to serve the last 6 years of his qualifying service in a Reserve Component.  

2.  Public Laws 103-337 and 106-65 provide retirement eligibility for individuals in the applicant’s situation.  It would be appropriate to show that he was retired under the provisions of that law.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

     a.  showing that the applicant was separated from the Army National Guard and as a Reserve of the Army by reason of medical unfitness effective 31 July 2000;
     b.  showing that he served his last 6 years of qualifying service in a Reserve Component status; and

     c.  showing that on 1 August 2000 he was transferred to the Retired Reserve with entitlement to Reserve retired pay/benefits at age 60 under the provisions of Public Law 106-65.

2.  The Army has an established program to counsel retiring soldiers on the rights, benefits, and privileges afforded as a result of military retirement.  Retirement Services Officers (RSO) are available at most major Army installations to provide a retirement briefing, which includes information on the 
SBP.  The applicant is advised to contact his nearest RSO (list enclosed ) as soon as possible to facilitate a smooth transition to retired status.

BOARD VOTE:  

___mdm__  __js____  __kah___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Mark D. Manning
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000041608	
SUFFIX		
RECON		
DATE BOARDED	20000810	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	135.03	
2.		
3.		
4.		
5.		
6.