PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            6 September 2001                  
	DOCKET NUMBER:   AR2001056415

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Melvin H. Meyer		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 consideration of a 15-year retirement at age 60.

3.  The applicant states that he was denied reenlistment in the Virgin Islands Army National Guard (VIARNG) because his physical examination was over       5 years old.

4.  The applicant’s military records show that the applicant served in the Army of the United States during the period 12 March 1963 to 11 March 1965                 (2 qualifying years).  He served in the Army Reserve during the period 12 March 1965 to 11 March 1969 (4 non-qualifying years).  During the period 12 March 1969 to 15 January 1976, he had no military affiliation.  During the period          16 January 1976 to 15 January 1992 (16 qualifying years), he served in the ARNG 

5.  On 15 January 1992, he was honorably discharged in pay grade E-7 under National Guard Regulation (NGR) 600-200, paragraph 8-22b(4) other designated physical or mental condition (outdated physical examination and Army Physical Fitness Test).  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) indicates he had 18 years of creditable service for retirement at age 60 and 22 years for pay.

6.  On 16 February 2001, the Chief, National Guard Bureau (CNGB) opined that soldiers with at least 18 but less than 20 qualifying years of service for nonregular retired pay at age 60, will be extended to the point where they can attain 20 qualifying years.  They may not be discharged without the written approval of the CNGB.  Except in extreme cases, this authority is rarely given.  The opinion was that the soldier was discharged without proper authority (CNGB approval) due to the fact he had 18 years qualifying service, based upon his retirement point accounting statement and he should have been extended to permit him to complete 20 years.

7.  On 26 March 2001, the CNGB opinion was forwarded to the individual concerned for his acknowledgement/rebuttal.  On 2 April 2001, he concurred with the advisory opinion.

8.  NGR 600-200 (Enlisted Personnel Management) indicates, in pertinent part, that soldiers who are within 2 years of completing the service required to qualify for retired pay must have the approval of the CNGB to be involuntarily discharged.

CONCLUSIONS:

1.  The evidence of record shows the applicant’s unit did not have CNGB authority to involuntarily discharge him.  He is entitled to reinstatement and constructive service credit with pay and retirement points for the period of         16 January 1992 to 15 January 1994 based on his improper discharge.

2.  The Board concludes that the applicant is not entitled to a 15-year retirement, as he requested.  He was entitled to completion of 20 years for retirement.

3.  In view of the foregoing, and insofar as the Department of the Army is concerned, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

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

	a.  by showing the individual’s discharge dated 15 January 1992 from the VIARNG is null and void and without force or effect, with reinstatement to his previous status;

	b.  by showing he remained in the VIARNG and received credit for all drills, annual training, and active duty, to include back pay and allowances, that he would have received had he not been discharged;

	c.  by showing he was issued a letter of notification of completion of        20 years of qualifying service for retired pay at age 60; and

d.  by showing he was separated and transferred to the Retired Reserve, as appropriate, based on 20 years of qualifying service with back pay to which he is entitled under Federal law as the result of the correction to his Department of the Army records.

BOARD VOTE:  

_jtm____  _mmh___   _lls____    GRANT AS STATED IN RECOMMENDATION

________  ________  ________ GRANT FORMAL HEARING

________  ________  ________ DENY APPLICATION

		         Luther L. Santiful 
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001056415	
SUFFIX		
RECON		
DATE BOARDED	20010906D	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	136	
2.		
3.		
4.		
5.		
6.