PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           6 June 2002                   
	DOCKET NUMBER:   AR2001059669

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Thomas E. O'Shaughnessy, Jr.		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 a reconsideration of his application to correct his records to show that he was authorized a Reserve early retirement based upon physical disability.

3.  The applicant states that, since he had over 18 years of service he should have either been retained until he completed 20 years for retirement or been given an early retirement due to his medical disqualification.

4.  Incorporated herein by reference are military records which were summarized in the decisional document prepared to reflect the Board's previous consideration of the case (AR2000037098) on 15 June 2000.

5.  The applicant submits a copy of his Chronological Statement of Retirement Points showing successful completion of 18 qualifying years toward a Reserve Retirement, a copy of the 22 February 1995 orders transferring him to the Retired Reserve effective 28 February 1995, the back page of a physical examination indicating he was qualified for retention, a copy of a letter, dated 21 August 1995, notifying him that he had been determined to be medically unqualified for retention due to diabetes mellitus, and a copy of his election to be transferred to the Retired Reserves, dated 17 October 1995.

6.  The staff of the Board has determined that the applicant’s submissions show a manifest error that requires Board review.  

7.  In the development of the case an advisory opinion was obtained from the Office of the Deputy Chief of Staff G-1, Washington, D.C. 20310-0300.  The Chief, Officer Division, opined that the applicant's February 1995 transfer to the Retired Reserve was improper.  He notes that since the applicant, at the time of his second non-selection for promotion, had 18 qualifying years of service, he was eligible to remain in the Reserve until the third anniversary date of his non-selection, unless discharged sooner for physical disability or age.  It is further noted that, had he been properly retained, he would have qualified for early Reserve retirement based on disability. 

8.  This opinion was referred to the applicant for comment or rebuttal, he concurred with the opinion on 16 May 2002.

9.  Army Regulation 140-10 (Assignments, Attachments, Details and Transfers), in pertinent part, provides detailed procedures regarding removal of Army Reserve members from an active status.  Paragraph 7-4 requires removal of officers who are twice non-selected for promotion to chief warrant officer three, chief warrant officer four, captain, major and lieutenant colonel.

10.  Army Regulation 135-155, paragraph 4-29, states that a member, whose removal from active Reserve status is required by law, must be removed within the prescribed time limits unless eligible for retention based on remaining obligated service or based on having more than 18 years but less than 20 years of service.  These officers were afforded 3 years to earn 2 qualifying years of service.

11.  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.

12.  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.  

CONCLUSIONS:

1.  Since the applicant had 18 years of qualifying service he was eligible for retention, if otherwise qualified, for three years in order to qualify for a 20 year Reserve Retirement.

2.  The Board concludes that the applicant was improperly transferred to the Retired Reserve in February 1995 following his second non-selection for promotion.  The order transferring him should therefore be revoked. 

3.  With the revocation of the February orders, he would have been eligible for an early retirement due to physical disability when it was subsequently determined that he was no longer qualified for retention in August 1995.

4.  The applicant was found to be medically disqualified for continued service in the Reserve after completing more than 18 years of qualifying service towards Reserve Component retired pay at age 60.  

5.  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.

6.  Due to the lapse of time since applicant was transferred to the Retired Reserve, it is impossible for the Board to determine the exact date that the applicant would have been placed in the Retired Reserve had his case been properly handled.  Therefore, the Board determines that it would be equitable to use the last day of the month in which he elected to be transferred, 31 August 1995, as the effective date of his transfer to the Retired Reserve. 

7.  In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below will correct an error.

RECOMMENDATION:

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

	a.  revoking the 22 February 1995 orders transferring the individual concerned to the Retired Reserve;

	b.  showing that he was offered and elected to continue in the Reserve in order to qualify for his 20 year Reserve Retirement; 

c.  showing that he was found to be medically disqualified for retention on 21 August 1995; 

d.  showing that, effective 31 August 1995, he was separated from the Reserve by reason of physical disability not incurred in the line of duty; and,

e.  showing that, on 1 September 1995, 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 

Survivor Benefits Plan.  The applicant is advised to contact his nearest RSO as soon as possible to facilitate a smooth transition to retired status.

BOARD VOTE:  

__SK____  __JTM__  ___TEO_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_      _Stanley Kelley_____
		        CHAIRPERSON

INDEX

CASE ID	AR2001059669	
SUFFIX		
RECON		
DATE BOARDED	20020606	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.	135.03	
3.		
4.		
5.		
6.