BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160002373 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ _x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160002373 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. BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160002373 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 issuance of a 15-Year Letter and entitlement to retired pay at age 60. He further requests that the New York Army National Guard (NYARNG) Archives release to him all records they have pertaining to his military service. 2. The applicant states he was processed for a medical discharge and assigned to the Retired Reserve but never received a 15-Year Letter notifying him of his eligibility for retired pay at age 60. He states that even though he did not serve his last 6 years in the ARNG, he was medically discharged. He contends that National Guard Regulation (NGR) 680-2 (Automatic Retirement Points Accounting Management), paragraph 3-2b, states those who are disqualified from further military service due to physical disability and meet all other criteria will be retired. He states he is in the Defense Enrollment Eligibility Reporting System (DEERS) as a Reserve retiree and his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) indicates his reassignment to the Retired Reserve, so he should receive a 15-Year Letter. 3. The applicant provides: * Automated Separation Document, effective 15 June 1997 * NGR 680-2, dated 19 August 2011 (pages 7 and 8 only) * Letter from the National Personnel Records Center to the applicant, dated 20 May 2015 * NGB Form 23B (Army National Guard Retirement Points History Statement) prepared on 29 October 2015 * Memorandum from NYARNG to the applicant, subject: Denial of 15-Year Letter Request, dated 17 November 2015 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. On 10 July 1975, the applicant enlisted in the Regular Army. He remained on active duty until 19 December 1988, when he was honorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 16-5a, due to a Headquarters, Department of the Army, imposed bar to reenlistment. He had completed a total of 13 years, 5 months and 10 days of creditable active duty service. He was discharged in the rank of sergeant, pay grade E-5. 3. The applicant had no military service from 20 December 1988 to 23 February 1993, a period of 4 years, 2 months, and 4 days. 4. On 24 February 1993, the applicant enlisted in the NYARNG. He served as a member of the NYARNG until 15 June 1997, when he was discharged from the NYARNG and transferred to the Retired Reserve. He had completed 4 years, 3 months, and 22 days of service in the NYARNG. 5. Orders 201-009, State of New York, dated 22 July 1997, announced the applicant's honorable discharge from the NYARNG and reassignment to the Retired Reserve effective 15 June 1997. The additional instructions in this order state he had been found unfit for retention by a State Medical Duty Review Board. His eligibility for retired pay was based on a minimum of 15 years of qualifying service towards a reserve component retirement in accordance with Public Law 130-337 enacted 5 October 1994. 6. NGB Form 23B, prepared on 29 October 2015, shows the applicant had completed 17 years, 10 months and 20 days of qualifying service for non-regular retired pay. It also shows he served in the NYARNG from 24 February 1993 to 15 June 1997 and that he had a civilian break from 20 December 1988 to 23 February 1993. 7. A memorandum from the Branch Chief, Personnel Automated Records, NYARNG, to the applicant, dated 17 November 2015, responded to the applicant’s request for a 15-Year Letter. The memorandum stated that in accordance with NGR 680-2, paragraph 3-3b, he was not entitled to receive a 15-Year Letter because he had not served his last 6 years of qualifying service in a component other than a regular component, Fleet Reserve, or a Fleet Marine Corps Reserve. He was advised in the letter that he could submit an appeal to this Board. REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation. Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service. The medical condition(s) may significantly limit or interfere with the Soldier's performance of their duties; may compromise or aggravate the Soldier's health or well-being were they to remain in the service; may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the Government if the individual were to remain in the military service. 2. NGR 680-2 provides in chapter 3 (Requirements for Retired Pay): a. Paragraph 3-2b – ARNG Soldiers in an active status with at least 15, and fewer than 20, years of qualifying service who are disqualified from continued service due to a physical disability and meet all other eligibility criteria may be retired. The disability must not have been the result of the Soldier's intentional misconduct, willful neglect, willful failure to comply with standards and qualifications for retention. The disability cannot have been incurred during a period of unauthorized absence, as provided in Title 10, U.S. Code, section 12731b. Soldiers will be discharged from the ARNG and transferred to the U.S. Army Reserve for assignment to the Retired Reserve, or concurrently discharged from the ARNG and as a Reserve of the Army, before the 15-Year Notification of Eligibility can be generated and issued. b. Paragraph 3-3b – For Soldiers who completed the years of qualifying service on or after 5 October 1994, but before 26 April 2005, the last 6 years of qualifying service must have been in a component other than a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve. 3. Title 10, U.S. Code, section 12731a (Temporary special retirement qualification authority) states for retirement with at least 15 years of service, the Secretary concerned may (1) during the period described in subsection (b), determine to treat a member of the Selected Reserve of a reserve component of the armed force under the jurisdiction of that Secretary as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member (A) as of 1 October 1991, has completed at least 15, and less than 20, years of service computed under section 12732 of this title; or (B) after that date and before the end of the period described in subsection (b), completes 15 years of service computed under that section; and (2) upon the request of the member submitted to the Secretary, transfer the member to the Retired Reserve. 4. Title 10, U.S. Code, section 12731b (Special rule for members with physical disabilities not incurred in line of duty) provides for a member of the Selected Reserve of a reserve component who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for purposes of section 12731 of this title, determine to treat the member as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member has completed at least 15, and less than 20, years of service computed under section 12732 of this title. 5. Title 10, U.S. Code, section 12732 (Entitlement to retired pay: computation of years of service) provides for the computation of a person’s years of service. An individual will receive one point for each day of active service, one point for drill attendance or a period of equivalent instruction, and 15 membership points per year in a reserve component are the standard rules. Other types of service can also be credited towards 20 qualifying years of service. DISCUSSION: 1. The available evidence shows the applicant completed more than 17 years of qualifying service towards a non-regular military retirement and that he was transferred to the Retired Reserve due to medical unfitness for retention in the active Reserve. A NYARNG State Medical Duty Review Board made its determination in accordance with Army Regulation 40-501, chapter 3. The law in effect at the time did authorize an early retirement for those who were found to be unfit for continued military service due to physical disabilities. 2. The applicant did not provide his State personnel and medical records showing what condition made him unfit and if it was an illness or injury incurred in the line of duty. As a medical review board determined he was unfit, he was issued orders showing he was honorably discharged and transferred to the Retired Reserve. Orders 201-009 show he was eligible for retired pay at age 60 and that his eligibility was based on a minimum of 15 years of qualifying service towards a reserve component retirement. 3. It appears the applicant was eligible for an early retirement because his years of qualifying service were between 15 to 20 years. However, in 1997 there was a provision in the law stating to qualify for reserve component retirement a member must have served the last 6 years of his qualifying service in a reserve component. This provision was later changed cancelling the requirement to have served in the reserve component for 6 years for eligibility for non-regular retired pay. This new provision was effective in 2005. There was no provision for applying the new standard retroactively. 4. The applicant’s request to obtain his records from the NYARNG is noted. However, this Board does not have the authority to direct the NYARNG to do as he asks. He is encouraged to write the State of New York Adjutant General requesting the State provide him with his NYARNG records. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002373 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002373 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2