MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            29 May 2003       
	DOCKET NUMBER:   AR2003083618

	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 L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Frank C. Jones		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 she be entitled to an early Reserve retirement due to physical disability.

APPLICANT STATES:  That she completed 16 years and 3 months of service for pay purposes.  Due to her physically disabled status, she was forced to separate from the Active Reserve prematurely in 1988.  Her last tour of duty with the Virgin Islands Army National Guard was short lived because she experienced severe knee problems.  Subsequent to her separation she had her right knee operated on and replaced.  Her second knee is scheduled for replacement in 2003.

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

After having had prior service, the applicant was appointed a warrant officer in the Army National Guard apparently on 2 June 1978.  

The applicant's NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) shows she was discharged from the Army National Guard and as a Reserve of the Army on 29 January 1988.  The authority for her separation was National Guard Regulation 635-100, paragraph 5a(3)a (Resignation).  She had completed a total of 16 years, 3 months, and 4 days service for pay.

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 or she has completed at least 15 and less than 20 years of service.

The authority provided by section 12731b, Title 10, U. S. Code superseded 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 service as of 1 October 1991.  The intent of the new subsection was to make the authority permanent.  It is not “retroactive” beyond the effective date (23 October 1992) already provided for. 

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.  The original law which allowed early Reserve retirement for physical disability became effective 23 October 1992.  The applicant was separated on 29 January 1988.  Neither the original law nor the current law making the early retirement   for physical disability policy permanent made the policy retroactive beyond        23 October 1992.

3.  Regrettably, 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

__lls___  __le____  _fcj        ___  DENY APPLICATION

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

INDEX

CASE ID	AR2003083618	
SUFFIX		
RECON		
DATE BOARDED	20030529	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	135.03	
2.		
3.		
4.		
5.		
6.