IN THE CASE OF: BOARD DATE: 23 February 2016 DOCKET NUMBER: AR20150006280 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 a medical retirement. 2. The applicant states: a. In June 2004, his unit deployed to Iraq. Upon activation he was required to undergo a physical examination. During his examination, medical personnel discovered he had an abnormal heart condition and could not be deployed. He underwent follow-up evaluations between July 2004 and December 2006. b. In November 2005 while he was undergoing medical evaluations, he was granted retirement status via his 20-year letter. c. He wants his military status changed from "regular" retirement to medical retirement. 3. The applicant provides: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * service medical records * Department of Veterans Affairs (VA) documentation 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 Army Board for Correction of Military Records (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 was born on 28 June 1963. 3. Having prior active service in the Regular Army and inactive service in the U.S. Army Reserve (USAR), he enlisted in the Army National Guard (ARNG) on 7 March 1995. He was promoted to staff sergeant effective 19 July 2002. 4. On 3 November 2005, he received his Notification of Eligibility for Retired Pay at Age 60 (20-year letter). 5. His disability proceedings are not available for review. 6. On 15 June 2007, he was honorably discharged from the ARNG for being medically unfit for retention and transferred to the USAR Control Group (Retired). 7. He provided a VA Rating Decision, dated 8 April 2008, which shows service connection for severe, nonischemic cardiomyopathy, left bundle branch block, and heart failure, status post-placement of implantable cardioverter defibrillator was denied. 8. Paragraph 8-35l(8) of National Guard Regulation 600-200 (Enlisted Personnel Management) provides for discharge from the State ARNG for being medically unfit for retention per Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 9. Army Regulation 135-180 (Retirement for Non-Regular Service) implements statutory authorities governing granting retired pay for Non-Regular (meaning Reserve Component) service to Soldiers in the ARNG, ARNG of the United States, and the USAR and prescribes Army policies and procedures governing Non-Regular retirement. Chapter 2 provides that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60 and completed a minimum of 20 years of qualifying service. 10. Title 10, U.S. Code, section 12731b(a), states 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 the member has completed at least 15 and less than 20 years of service. 11. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of disability incurred while entitled to basic pay. DISCUSSION AND CONCLUSIONS: 1. A member of the Selected Reserve who has completed at least 15 and less than 20 years of qualifying service but who no longer meets the qualifications for membership solely because he or she is unfit because of physical disability may be treated as having met the service requirements and be issued a 15-year notification of eligibility for retired pay at age 60. 2. The evidence shows the applicant was honorably discharged from the ARNG for being medically unfit for retention in June 2007. He had completed 20 qualifying years for retired pay at age 60 and received his 20-year letter. He will be eligible, upon application, for retired pay on 28 June 2023. 3. He contends his military status should be changed from "regular" retirement to a medical retirement. However, in the absence of evidence to the contrary, it must be presumed his separation processing was administratively correct and in conformance with applicable regulations. Without the discharge/disability packet to consider, it is presumed that the authority and reason for his discharge from the ARNG and the characterization of service he received were commensurate with his overall record of service. 4. There is no evidentiary basis for granting the applicant's request for a medical retirement. 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) AR20150006280 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006280 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1