PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           19 June 2003                  
	DOCKET NUMBER:   AR2002080926

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone 		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. William D. Powers 		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, in effect, that she be granted retirement.  

3.  The applicant states, in effect, that she underwent an annual physical examination after having served in the Army National Guard (ARNG) for over 
19  years.  During this examination, it was discovered that she was suffering from a serious heart disease.  She claims that she was informed by her unit commander that she could no longer serve due to her condition, and she was given an honorable discharge.  She claims that she tried to apply for disability, but it was denied because her heart disease was not considered service connected.  She claims that she applied for normal retirement; however, this was also denied because she had not completed 20 years of service.  She indicates that she has reached her 60th birthday, was laid off of her job of 39 ½ years due to downsizing, and it is very financially difficult for her at this time.  In support of her application, she submits a memorandum from the supervisor of the Retirements and Annuities Branch, Army Reserve Personnel Command (ARPERSCOM).  

4.  The applicant’s military records show that on 1 July 1995, she was discharged from the New York Army National Guard (NYARNG) and transferred to the United States Army Reserve (USAR) Retired Reserve.  

5.  A NYARNG memorandum, dated 15 May 1995, confirms that a State Medical Duty Review Board (MDRB) was conducted to evaluate the applicant’s fitness to maintain her military occupational specialty (MOS), duty assignment, and membership in the ARNG.  The MDRB determined that the applicant no longer met the medical retention standards, and as a result action would be taken to effect her discharge.  

6.  Medical records outlining the specific medical condition that were used by the MDRB were not on file in the record.  However, there is a letter from the Gramercy Cardiac Diagnostic Service who evaluated the applicant.  The physician’s document three impressions of heart related defects from this evaluation.  

7.  Orders Number 171-003, dated 1 September 1995, issued by the Office of the Adjutant General, State of New York, directed the applicant’s discharge from the ARNG, effective 1 July 1995.  These orders contained the additional instruction entry “Soldier is entitled to a nontraditional 15 year retirement letter”, which indicates that the applicant completed the qualifying service necessary to receive retired pay at age 60.  

8.  The Report of Separation and Record of Service issued to the applicant upon her discharge from the NYARNG confirms that she completed 19 years and 
8 days of service as of the date of her discharge from State status on 1 July 1995.  It also confirms that she held the rank and pay grade of sergeant/E-5 (SGT/E-5) and that she was being transferred to the Retired Reserve.  

9.  The ARPERSCOM Retirements and Annuities Branch provided a memorandum in support of the applicant.  It states that a review of the case revealed that the reason for her dismissal from the NYARNG was a medical condition beyond her control.  It further indicates that Title 10 of the United States Code, chapter 1223 and section 12731b, authorized the retirement of soldiers who had completed more than 15 years of service and who were discharged from service due to medical disqualification.  Finally, this opinion indicates that a review of the applicant’s record revealed that she met this criteria for retirement.  There is also a Reserve Personnel and Accounting System (RPAS) statement on file, which confirms that as of the date of her transfer to the Retired Reserve, the applicant had completed 19 years of creditable service for Reserve retirement.  

10.  In connection with the processing of this case, on 21 February 2003, the National Guard Bureau (NGB) was requested to provide an advisory opinion on this case not later than 21 March 2003.  On 21 March 2003, a second advisory opinion request was made of the NGB, and it was requested that the reply be provided for the Board not later than 5 May 2003.  However, to date the NGB has failed to provide an advisory opinion or to respond to the requests.  

11.  Title 10 of the United States Code, section 12731 provides the legal authority for age and service requirements for non-regular retired pay.  It states, in pertinent part, that members are entitled to retired pay when they are at least 
60 years of age and have performed at least 20 years of service.  Section 12731a provided the temporary authority to grant non-regular retirement to members who completed at least 15, but less than 20 years of qualifying service during the period 23 October 1992 through 31 December 2001. 

12.  Section 12731b provided the special rule that allowed members with physical disabilities not incurred in line of duty the entitlement of early 
non-regular retirement.  It states, in pertinent part, that a member of the Selected Reserve of a Reserve Component who no longer meet the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, may be treated as having met the service requirements for non-regular retirement if the member completed at least 15 and less than 20 years of service.  

CONCLUSIONS:

1.  The Board notes the applicant’s claim that she is entitled to retirement based on her being discharged from the NYARNG for medical reasons, and it finds this claim has merit.  

2.  The law in effect at the time of the applicant’s discharge from the NYARNG, authorized the retirement of soldiers who had completed at least 15, but less than 20 years of service under certain circumstances.  One of these qualifying circumstances was a member who had been discharged from the service due to a medical disqualification.  

3.  The evidence of record confirms that a State MDRB determined the applicant was medically unfit to perform her military duties.  Further, as evidenced by 
the enclosed RPAS statement, at the time of her discharge from State status, she had completed 19 years of creditable service for Reserve retirement, as evidenced by the enclosed RPAS statement.  Further, her discharge orders contain an entry confirming her eligibility to receive a nontraditional 15 year retirement letter, which indicates she completed the necessary qualifying service to receive retired pay at age 60.  Finally, her separation document confirms that she was transferred to the Retired Reserve upon her discharge from the NYARNG.  

4.  In view of the facts of this case, and given the verification of the applicant’s retirement eligibility provided by ARPERSCOM retirement officials, the Board concludes that it would be appropriate to correct the record to show the applicant was eligible for non-regular retired pay at the time of her discharge from the NYARNG, and by granting her retired pay effective the date she reached age 60, and any back retired pay due as a result.  

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned had completed the necessary qualifying service to receive retired pay at age 60 at the time she was discharged from the New York Army National Guard and transferred to the Retired Reserve; by providing her retired pay, effective the date she reached age 60; and by providing her any back retired pay due as a result.  

BOARD VOTE:  

__JS___  __WDP__  __LEM  _  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		John N. Slone
	                                              CHAIRPERSON

INDEX

CASE ID	AR2002080926	
SUFFIX		
RECON		
DATE BOARDED	2003/06/19	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1995/07/01	
DISCHARGE AUTHORITY	NGR 600-200	
DISCHARGE REASON	Medically Disqualified	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  338	136.0000	
2.		
3.		
4.		
5.		
6.