PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:          21 October 2003                    
	DOCKET NUMBER:  AR2003087936

	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	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Mr. William D. Powers		Member	
	Mr. Frank C. Jones		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 that he be determined to be eligible for a 15-year 
Reserve Component retirement.   

3.  The applicant states that he experienced pain in his lower back and mental illness during his service in the Gulf War.  He contends that these injuries prevented him from qualifying as physically fit for active duty.  He also contends that he has 17 years of qualifying active and reserve component service and that he served in the Puerto Rico Army National Guard until his involuntary discharge. He states that he was found medically unfit for continued service in a reserve component and no longer meets the qualifications for membership in the Selected Reserve because of physical disability.  In support of his application, he submits a continuation sheet and an Army National Guard Retirement Points History Statement, dated 31 July 2002.

4.  The applicant’s military records show that he enlisted in the Army National Guard on 25 June 1975.  

5.  On 3 January 1991, the applicant was ordered to active duty in support of Operation Desert Shield/Desert Storm.  He served in Southwest Asia from 
15 February 1991 through 13 June 1991 and was released from active duty on 
6 July 1991.

6.  On 1 September 1992, a Physical Profile Board diagnosed the applicant with symptomatic herniated disc at L4-L5 and L5-S1 with recurrent episodes of lower back pain and mental illness due to depression.  The Physical Profile Board issued the applicant a permanent profile and determined that he was not fit for retention.

7.  The applicant was discharged from the Army National Guard and as a Reserve of the Army effective 2 October 1992 due to other designated physical and mental conditions.  He had completed 15 years of creditable service for retired pay.  All of his years of qualifying service were completed in a Reserve Component.      
 
8.  In 1995, the Office of The Judge Advocate General provided a legal opinion to the National Guard Bureau, opining that Title 10, U.S. Code, section 12731a(a)(1) extended the Early Reserve Retirement Eligibility for Disabled Members to soldiers who attained 15 years of retirement eligibility after 1 October 1991 even though the date of the provision was not added until 5 October 1995.  (The provision was actually added 5 October 1994.)

9.  Title 10. U.S. Code, section 12731a was the temporary special retirement qualification authority.  A revision dated 5 October 1994 provided that, during the 

period 1 October 1991 through 30 September 1999, a member of the Selected Reserve who had completed at least 15, and less than 20, years of qualifying service and who no longer met the qualification for membership in the Selected Reserve solely because the member was unfit because of physical disability, and upon the request of the member, could be transferred to the Retired Reserve and treated as having met the service requirements and be provided with the notification required if he had completed at least 15 and less than 20 years of service.  It was further extended until 31 December 2001.

10.  In the processing of this case, an advisory opinion was obtained from The Adjutant General's Office, Puerto Rico National Guard.  That office noted that the applicant met the provisions of law (15 years of qualifying service, served the last six years in the Reserve Component, was found medically unfit for continued service in the Selected Reserve, and discharged on 2 October 1992) and the intent of Congress and, in fairness and equity, it supported his request for a Selected Reserve medical retirement. 

11.  A copy of the advisory opinion was provided to the applicant for comment.  He did not respond within the given time frame.

CONCLUSIONS:

1.  The Board concludes that an injustice did occur in this case.

2.  The applicant was discharged from the Army National Guard and the U.S. Army Reserve on 2 October 1992 due to other designated physical and mental conditions.  At that time he had completed 15 qualifying years for a reserve retirement, all of which were completed in a Reserve Component.

3.  In October 1992, there was no provision for an early reserve retirement due to medical disability.  However the law was changed on 4 October 1994 and was made retroactive to 1 October 1991.

4.  In view of the foregoing, 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 by showing that the applicant was transferred to the Retired Reserve on 

2 October 1992 in accordance with the Temporary Special Retirement Qualification Authority and is entitled to all benefits thus conferred.

BOARD VOTE:  

MHM___  WDP____  FCJ_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Melvin H. Meyer________
		        CHAIRPERSON

INDEX

CASE ID	AR2003087936	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031021	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	136.0000	
2.		
3.		
4.		
5.		
6.