MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 April 2000                   
	DOCKET NUMBER:   AR1999034844

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. James P. Stueve		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 he be entitled to an early Reserve retirement due to physical disability.

APPLICANT STATES:  That he was in the Kentucky Army National Guard for   18 years when he moved to Oklahoma with the intention of entering the Oklahoma Army National Guard or the U. S. Army Reserve.  He was turned down by both because of a lung problem.  He provides an extract from an e-mail article concerning the National Defense Authorization Act for fiscal year 2000, the pertinent portion of which establishes disability retirement or separation for certain members with pre-existing conditions.

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

He initially enlisted in the Kentucky Army National Guard on 1 December 1952 and remained there, with several breaks in service, until he was separated on      14 April 1981.  He apparently moved and attempted to enter the Oklahoma Army National Guard and was turned down because of a lung problem caused by asbestos exposure.

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.

The authority provided by section 12731b, Title 10, U. S. Code currently exists 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 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 the aforementioned requirement.

2.  The original law which allowed early Reserve retirement for physical disability became effective 23 October 1992.  The applicant was separated on 14 April 1980.  The new law did not make the policy retroactive; it only continued it on a permanent basis.

3.  Unfortunately, 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

__rgh___  __bje___  __jps___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999034844	
SUFFIX		
RECON		
DATE BOARDED	20000412	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	135.03	
2.		
3.		
4.		
5.		
6.