MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 April 2002                   
	DOCKET NUMBER:   AR2002068483

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Hubert O. Fry, Jr		Member	
	Mr. Thomas E. O'Shaughnessy, Jr.		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:  That his discharge be changed to reflect a disability retirement.

APPLICANT STATES:  That members of the Selected Reserve who have completed at least 15 qualifying years of service and who are involuntarily separated are eligible for retired pay at age 60.  This provision is available to members who become medically disqualified for service.  According to this provision, he should have received a medical retirement.  He provides his Report of Separation and Record of Service, NGB Form 22, and his discharge orders as supporting evidence.

COUNSEL CONTENDS:  That the applicant’s records were reviewed and referred to the Board for their careful and compassionate consideration.  Counsel fully supports the applicant’s contention.

EVIDENCE OF RECORD:  The applicant's military records are not available.  Information contained herein was obtained from alternate sources.

After having had prior service in the Regular Army and the U. S. Army Reserve, the applicant enlisted in the Army National Guard on 26 October 1993.

On 28 April 2000, the applicant was discharged from the Army National Guard and as a Reserve of the Army due to being medically unfit for retention.  His NGB Form 22 shows that he completed a total of 16 years, 7 months, and 2 days of service for pay.  Orders D67-2, U. S. Army Physical Disability Agency dated        7 April 2000 show that he had a 20 percent disability rating and was authorized disability severance pay.  

The applicant’s Army National Guard Retirement Points History Statement shows that he completed 13 years of creditable service for retired pay (13 qualifying years).  It indicates that his retirement year ending dates 26 September 1997,   26 September 1998, 26 September 1999, and 28 April 2000 were not qualifying years for retired pay in that he earned less than 50 retirement points those years.

Sections 12731 through 12738 of Title 10, U.S. Code, authorize retired pay for Reserve component military service.  Under this law, a Reserve soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.

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 qualifying years of service.  This authority had existed as a force reduction/transition initiative in section 12731a(c)(3) for the period beginning 23 October 1992 and ending                    30 September 2001 for those members who completed at least 15 years of qualifying service as of 1 October 1991.  The intent of the new subsection was to make the authority permanent.

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.  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.

2.  While the Board notes that the applicant is credited with over 16 years of service for pay, his Army National Guard Retirement Points History Statement shows that he only had 13 years of qualifying service towards eligibility for retired pay at age 60.  Unfortunately, a minimum of 15 years are required under Public Law 106-65.

3.  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

__aao___  __hof___  __teo___  DENY APPLICATION

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

INDEX

CASE ID	AR2002068483	
SUFFIX		
RECON		
DATE BOARDED	20020430	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	135.03	
2.		
3.		
4.		
5.		
6.