MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  25 October 2001
	DOCKET NUMBER:  AR2001058420

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Ms. Kathleen A. Newman		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, that his transfer to the Retired Reserve include entitlement to retired pay at age 60.

APPLICANT STATES:  That he was found medically unfit for retention and further military service.  He completed over 15 years of qualifying service for retirement and should be eligible under the Temporary Early Retirement Authority (TERA).  He provides a letter from his doctor, his notification of medical disqualification for further military service, his retirement orders, a memorandum from the Office of The Judge Advocate General (OTJAG) concerning TERA implementing instructions, and the denial of his request for retired pay from the Army Reserve Personnel Command (AR-PERSCOM).

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

The applicant was assigned to the Michigan Army National Guard (MIARNG) as a unit armorer in the pay grade of E-5.  On 7 April 1992, the applicant’s doctor provided a letter stating that the applicant should be discharged from the MIARNG because of an ongoing heart condition.

On 5 May 1992, the personnel office of the MIARNG stated, in a memorandum, that the MIARNG Surgeon had found the applicant not eligible for further military service.  The applicant’s unit was directed to publish discharge orders effective 4 June 1992.  Effective 4 June 1992, the applicant was discharged from the MIARNG under the authority of National Guard Regulation (NGR) 600-200, paragraph 8-26y, as not meeting the medical retention standards of Army Regulation 40-501, chapter 3.  On 21 September 2000, the MIARNG revoked the discharge order and transferred him to the Retired Reserve effective 4 June 1992.

NGR 600-200, chapter 8, provides the discharge policy for Army National Guard (ARNG) soldiers.  Paragraph 8-26y provides for the discharge of ARNG soldiers who are found to be medically unfit for retention and whose medical condition was not incurred or aggravated during an active duty period.

Army Regulation 135-178 provides the policy for separating ARNG and Army Reserve soldiers.  Chapter 12 of the regulation states that separation will be accomplished when it is determined that an enlisted soldier is no longer qualified for retention by reason of medical unfitness.

Army Regulation 40-501 provides the standards of medical fitness for retention of active and Reserve Component soldiers.  Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention in an active status.

Army Regulation 635-40 provides the policy for the disability processing of Reserve Component soldiers.  Chapter 8 of the regulation specifies that only those soldiers who incur a disease or injury while performing inactive or active duty training will be processed for physical disability separation or retirement.

Title 10, U. S. Code, section 12731a provides the temporary special retirement qualification authority for the Reserve Component.  The period of this special temporary retirement authority to assist in the downsizing or the Reserve Components began on 23 October 1992, the date of the passage of the first relevant Public Law, and ended on 1 October 1999.  On 5 October 1995, it was modified to include members who no longer met the qualifications for membership in the Selected Reserve solely because the member was unfit because of physical disability and they had completed at least 15 years of qualifying service for retirement.

A 7 November 1995 memorandum from the OTJAG to the NGB provided legal review comments on the NGB implementing instructions for section 12731a(c)(3).  The legal review noted that there would be no prohibition to providing eligibility for this program change to those soldiers who attained 15 years of qualifying service for retirement as of 1 October 1991.

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 found to no longer meet the medical retention standards for continued service in the Reserve Components.  He was originally discharged and later transferred to the Retired Reserve effective 4 June 1992.

2.  He was not eligible for physical disability processing because there was no evidence that he incurred his heart disease while performing inactive or active duty training.

3.  Notwithstanding that the applicant had completed 15 years of qualifying service for retirement at age 60, prior to 1 October 1991, he was separated from the Reserve Components 4 months prior to the passage of the law that might have allowed his early retirement.  There was no error or injustice in his separation.

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 this 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

__rw____  ___rb___  __kn____  DENY APPLICATION

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

INDEX

CASE ID	AR2001058420	
SUFFIX		
RECON		
DATE BOARDED	20011025	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19920604	
DISCHARGE AUTHORITY	AR 135-178	
DISCHARGE REASON	A31.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	136.05	
2.		
3.		
4.		
5.		
6.