PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           1 February 2001                   
	DOCKET NUMBER:   AR2000045352

	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. Luther L. Santiful		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Barbara J. Lutz		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 her records be corrected to show that she was retired under the provisions of Public Law 106-65 (15-year retirement law) with a waiver for the (temporary) requirement to have served in a Reserve Component for 6 years prior to separation so as to be eligible for retired pay and benefits at age 60. 

3.  The applicant states that she enlisted in the Army National Guard (ARNG) after 16 years of active duty service with the full intention of completing her        6-year ARNG enlistment.  However, a Medical Duty Review Board has determined that because of her present physical condition she no longer meets the medical standards for retention.  

4.  The applicant’s military records show that she was born on 22 September 1962.  She served in the Regular Army from 20 August 1980 until 16 August 1996 when she was discharged in pay grade E-6 upon the completion of her required active service.  She enlisted in the Army National Guard on                  23 December 1996 for 6 years.

5.  On 17 March 1999, a Medical Duty Review Board determined that the applicant was medically disqualified for continued service due to multiple service-connected disabilities, to include Graves’ Disease. 

6.  On 31 January 2001, the applicant was discharged from the Army National Guard.  An Army National Guard annual statement of retirement points shows she had completed 18 years, 11 months, and 27 days of qualifying service for non-regular retired pay, her last 3 qualifying years being in a Reserve Component.  

7.  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. 

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) during this period.  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.  She 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 she was only 37 years old at the time and concludes that it is reasonable to presume that had she been medically fit she would have continued her National Guard service and thereby have met the requirement to serve the last 6 years of her qualifying service in a Reserve Component.  

2.  Public Laws 103-337 and 106-65 provide retirement eligibility for individuals in the applicant’s situation.  The Board agrees with the advisory opinion that it would be appropriate to show that she was retired under the provisions of those laws.

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 January 2001;

     b.  showing that she served her last 6 years of qualifying service in a Reserve Component status; and

     c.  showing that on 1 February 2001 she 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:  

__lls__  __jea___  __bjl___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Luther L. Santiful
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000045352	
SUFFIX		
RECON		
DATE BOARDED	20010201	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	135.03	
2.		
3.		
4.		
5.		
6.