IN THE CASE OF: BOARD DATE: 5 January 2016 DOCKET NUMBER: AR20150003553 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his: a.  DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 23 July 1982 to show his basic training from 9 April to 29 December 1980; b.  National Guard Bureau (NGB) Form 55A (Certificate of Honorable Discharge from the Federally Recognized Army National Guard) to show his total military service as 14 years, 7 months, and 3 days; and c.  U.S. Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points) to show his total military service years for retirement eligibility. 2. The applicant states, in effect, he believes he is eligible for a military retirement. He also questions: * if his years of total active service listed on his DD Form 214 can be combined with his ARPC Form 249E * why his NGB Form 55a and ARPC Form 249-E show different amounts of service 3. The applicant provides: * two DD Forms 214 * two ARPC Forms 249-E * four Army Board for Correction of Military Records (ABCMR) letters, dated 2 June 2014, 16 February 2011, 3 November 2009, and 13 May 2009 * NGB Form 22 (Report of Separation and Record of Service) * ABCMR Record of Proceedings Docket Number AR2003098747, dated 4 November 2004 * ABCMR Record of Proceedings Docket Number AR20080019884, dated 12 May 2009 * Official Military Personnel File (OMPF) extracts * pay records * driver's license CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's complete OMPF and separation processing documents are not available for review. 3. His available records show: a.  He served in the Army National Guard (ARNG) from 9 April 1980 through 29 December 1980. He was issued a DD Form 214 showing he was ordered to active duty for training for the period 18 June through 20 October 1980. b.  He served in the U.S. Army Reserve (USAR) from 30 December 1980 through 22 February 1981. c.  He enlisted in the Regular Army on 23 February 1981 and he was honorably discharged on 23 July 1982. His DD Form 214 for this period shows his narrative reason for separation as unsuitable – personality disorder. d.  After a break in service, he enlisted in the ARNG on 14 July 1984 and served until 31 January 1987. e.  He was assigned to the Inactive National Guard during the period 1 February through 1 July 1987. On 27 October 1987, he was honorably discharged from the ARNG and transferred to the USAR Control Group (Reinforcement) (commonly known as the Individual Ready Reserve). f.  On 30 October 1987, he enlisted in the ARNG and served honorably until 29 November 1988. g.  After a break in service, he again enlisted in the ARNG on 28 September 1989 and he served honorably until 27 September 1991. h.  He had a break in service during the period 28 September 1991 through 8 December 1992. i.  He enlisted in the ARNG on 9 December 1992 for a 1-year period. On 28 August 1993, he extended his enlistment for a 3-year period. On 1 November 1995, he was discharged under honorable conditions (general) due to unsatisfactory performance and he was transferred to the USAR Control Group (Reinforcement). j.  On 21 August 1996, he enlisted in the ARNG for a 1-year period. k.  On 24 September 1997, he extended his enlistment for a 3-year period. On 19 August 2000, he extended his enlistment for a 1-year period. On 16 June 2001, he extended his enlistment for a 1-year period. l.  On 24 August 2003, he was honorably discharged from the ARNG for immediate reenlistment in the USAR. m.  On 25 August 2003, he enlisted in the USAR for a 4-year period. 4. Headquarters, 94th Regional Readiness Command, memorandum, dated 10 May 2006, subject: Medical Documentation Review for (Applicant), shows his profile was reviewed and: * he did not meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 * his DA Form 3349 (Physical Profile) (which is not available for review) listed different levels of functional capacity in six factors (PULHES) as follows –  * P – physical capacity or stamina – 1 * U – upper extremities – 3 * L – lower extremities – 3 * H – hearing and ears – 1 * E – eyes – 1 * S – psychiatric – 1 5. On 7 September 2007, he was honorably discharged from the USAR. 6. His ARPC Form 249-E, dated 14 October 2009, covering his service from 9 April 1980 to 9 September 2007 shows he completed 14 years, 7 months, and 3 days of qualifying service toward retirement. 7. His ARPC Form 249-E, dated 19 January 2010, covering his service from 9 April 1980 through 7 September 2007 shows he completed 14 years, 5 months, and 10 days of qualifying service toward retirement. 8. He provided extracts of his OMPF and pay records. He also provided copies of his previous ABCMR decisions: a.  ABCMR Record of Proceedings Docket Number AR2003098747, dated 4 November 2004, wherein the Board denied his request for promotion to the rank/grade of sergeant/E-4 and changing his reenlistment code; and b.  ABCMR Record of Proceedings Docket Number AR20080019884, dated 12 May 2009, wherein the Board denied his request for medical retirement based on 24 years of military service. 9. His records are void of any evidence he was issued a 15-year letter for Non-Regular retired pay at age 60. Further, his records are void of and he failed to provide a copy of his NGB Form 55A. 10. The Temporary Early Retirement Authority, which authorized members with at least 15 years but less than 20 years of total active service to apply for early retirement, expired on 31 December 2001, 5 years prior to his discharge. 11. Army Regulation 40-501, then in effect, provided information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. a.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provided the standards for medical fitness for retention and separation, including retirement. Soldiers with medical conditions listed in this chapter were referred for disability processing. b.  Chapter 7 (Physical Profiling) provided a system for classifying individuals according to functional abilities and was used to assist the unit commander and personnel officer in their determination of what duty assignments the individual was capable of performing and if reclassification action was warranted. (1)  Four numerical designations (1-4) were used to reflect different levels of functional capacity in the six PULHES factors. (2)  Numerical designator 3 indicated an individual had a medical condition or physical defect which required certain restrictions in assignment within which the individual was physically capable of performing military duty. The individual received assignments commensurate with his or her functional capacity and the defect or impairment required significant restriction of use. c.  Chapter 9 stated: (1) Reservists who did not meet the fitness standards set by chapter 3 would be transferred to the Retired Reserve in accordance with Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfer) or discharged from the USAR in accordance with Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations). They would be transferred to the Retired Reserve only if eligible and if they applied for it. (2)  Reservists who did not meet medical retention standards could request continuance in active USAR status. In such cases, a medical impairment incurred in either military or civilian status would be acceptable; it need not have been incurred only in the line of duty. Reservists with non-duty related medical conditions who were pending separation for not meeting the medical retention standards of chapter 3 could request referral to a physical evaluation board for a determination of fitness. 12. Army Regulation 140-185 (Army Reserve – Training and Retirement Point Credits and Unit Level Strength Accounting Records) and Department of Defense Instruction 1215.07 (Service Credit for Non-Regular Retirement) governs awarding/crediting of retirement points. 13. The Retirements Points Accounting System provides an annual listing of creditable military service through the previous retirement year. The ARPC Form 249-E is generated within 30 days after the retirement year end date and it should reflect all military service and breaks in service by retirement anniversary year in each of the appropriate categories of inactive duty training, correspondence, membership, and active duty. When a correction to Soldier's account is completed, Retirements Points Accounting System will generate a revised ARPC Form 249-E. a.  Only members in an active Reserve status or in active Federal service are authorized to earn and be credited with retirement points. Reserve Soldiers are required to earn a minimum of 50 retirement points each full retirement year for credit as qualifying service. For periods less than a full retirement year, a proportionate number of points must be earned to have that partial year credited as qualifying service. b.  To qualify for Non-Regular retired pay, at or after the specified time in Title 10, U.S. Code, section 12731, a member must have completed 20 years of qualifying service unless otherwise provided by law. c.  A break in service occurs only when a member transfers to an inactive status list, the Inactive National Guard, a Temporary Disability Retired List, the Retired Reserve, or is discharged to civilian life for longer than 24 hours. 14.  Title 10, U.S. Code, chapter 1223 (Retired Pay for Non-Regular Service), section 12731 (Age and Service Requirements) provides, in part, that a person is entitled, upon application, to retired pay if the person is age 60 and has performed at least 20 years of qualifying service. While a qualifying year is determined to be a year in which a minimum of 50 retirement points have been credited for a Reservist, it is a full year for a member of the Regular Army. 15. 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 12371b, (Special Rule for Members with Physical Disabilities Not Incurred in Line of Duty). Section 12731b states a member of the Selected Reserve who no longer meets the qualification for membership in the Selected Reserve solely because the member is unfit because of physical disability pay, for the purpose of section 12371 (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 years and less than 20 years of service. 16. Title 10, U.S. Code, section 12731(d), states the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay. The notice shall be sent in writing to the person concerned within 1 year after the person completes that service. Section 12738(a) states that after a person is notified that he or she has completed the years of service required for eligibility for retired pay, the person’s eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service unless it resulted directly from the fraud or misrepresentation of the person. DISCUSSION AND CONCLUSIONS: 1. Although the applicant contends he was serving on active duty in the Regular Army on 9 April 1980, his DD Form 214 shows he was ordered to active duty for training for the period 18 June through 20 October 1980. His records are void of and he failed to provide any evidence he was ordered to active duty prior to 6 June 1980. 2. He contends he was serving on active duty in the Regular Army during the period 30 December 1980 through 22 February 1981. However, records show he was ordered to active duty during the period 23 February 1981 through 23 July 1982. His records are void of and he failed to provide any evidence he was serving on active duty during the period 30 December 1980 through 22 February 1981. 3. On 10 May 2006, the 94th Regional Readiness Command determined the applicant did not meet medical retention standards. 4. On 7 September 2007, he was honorably discharged from the USAR. 5. His ARPC Form 249-E, dated 14 October 2009, and later corrected on 19 January 2010, both show he had not completed 15 or 20 years of qualifying service for retirement. Additionally, his ARPC Forms 249-E capture his entire military career. 6. His available records are void of and he failed to provide any evidence showing he had a medical condition warranting processing through the Disability Evaluation System or that he received a disability rating of 30 percent or more for an unfitting condition. 7. In view of the aforementioned evidence, there is an insufficient basis for granting the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ____x___ ___x_____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ _x______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150003553 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003553 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1