BOARD DATE: 12 April 2018 DOCKET NUMBER: AR20160007862 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 12 April 2018 DOCKET NUMBER: AR20160007862 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 the issuance of a Notification of Eligibility for Retired Pay at Age 60 (15-Year Letter). 2. The applicant states he was assigned to the 5502nd U.S. Army Hospital, a troop program unit (TPU) of the U.S. Army Reserve (USAR). He received a memorandum from the Army Reserve Medical Command (AR-MEDCOM) notifying him that he was not medically available. The memorandum gave him the option to go before a medical evaluation board or early retirement. He chose an early retirement. He assumed he was actually retired and eligible for all retirement benefits, including retired pay at age 60. If this was not the case, he would have gone before the medical evaluation board and remained in the USAR since he had 16 years of service. When he was transferred to the Retired Reserve, he never considered that he was not fully retired. Luckily, he called the retirement branch and discovered there was an issue. 3. The applicant provides orders transferring him to the Retired Reserve. CONSIDERATION OF EVIDENCE: 1. The applicant was born in August 1974. He served in the Regular Army from 8 May 1990 to 4 November 2000, completing 10 years, 5 months, and 27 days of active service. 2. He enlisted in the USAR on 10 August 2000. He held military occupational specialty 71L (Administrative Specialist). He was initially assigned to the 21st General Hospital, St. Louis, MO, and on 3 April 2006, he was transferred to the AR-MEDCOM in Pinellas Park, FL. 4. On 10 May 2006, he was issued a permanent physical profile with the following functional limitations: * Failure to complete and complete physical * No current HIV test * Vision impaired for distance, did not get exam with glasses * Anxiety limitations prohibiting assignment/deployment to areas without psychiatric care 5. On 1 September 2006, he was further assigned to the 5502nd USAR Hospital in Aurora, CO. 6. On 12 December 2006, Headquarters, AR-MEDCOM, published orders transferring him to the Retired Reserve effective 11 January 2007 due to being medically disqualified. His DA Form 5016 (Chronological Statement of Retirement Points) shows he completed 16 years, 8 months, and 5 days of qualifying service toward non-regular retirement. 7. An advisory opinion was received on 13 December 2017 from the U.S. Army Reserve Command (USARC), Fort Bragg, NC. An advisory official stated: a. The USARC Office of Health Affairs has reviewed the applicant's request for issuance of a 15 year Notice of Eligibility (NOE) for retired pay at age 60. In accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3, it was determined that the applicant did not meet medical retention standards for continued service in the USAR when transferred to the Retired Reserve. Based upon review of the service member's medical profile (DA Form 3349) dated 2006 and Chronological Statement of Retirement Points (DA Form 5016), the applicant was eligible for transfer to the Retired Reserve and eligible for retired pay at age 60. The records suggest that a NOE should have been published at the time the permanent profile was issued. Furthermore, in accordance with Title 10, U.S. Code, section 12371(b), the applicant met the eligibility criteria for retirement and receipt of retired pay at age 60. b. The USARC recommends the U.S. Army Human Resources Command issue the applicant a NOE for receipt of retired pay at age 60. The Army Reserve Medical Management Center acknowledged the enclosed profile, dated 10 May 2006, signed by the HRC Command Surgeon and concurs with this recommendation. 8. On 17 December 2017, the USARC Army Reserve Medical Management Center confirmed that the applicant was determined to no longer meet medical retention standards and would have been eligible to elect retirement. 9. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or any comments. He did not respond. REFERENCES: 1. Title 10, U.S. Code, section 12731(a) (Temporary Special Retirement Qualification Authority) states: a. Retirement With At Least 15 Years of Service — For the purposes of section 12731 of this title, 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. b. Period of Authority. The period referred to in subsection (a)(1) is the period beginning on 23 October 1992 and ending on 31 December 2001. 2. Title 10, U.S. Code, section 12731(b) (Special Rule for Members with Physical Disabilities not Incurred in Line of Duty) states: a. In the case of 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. b. Notification under subsection (a) may not be made if (1) the disability was the result of the member’s intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention established by the Secretary concerned; or (2) the disability was incurred during a period of unauthorized absence. 3. According to HRC's website, effective 12 March 2009, new guidance was issued which reinterprets the intent of Title 10, U.S. Code, section 12371b. Previous guidance indicated eligibility was based on a physical disability not incurred in the line of duty. However, current interpretation of the law indicates that although its title infers applicability, it is only for members with disabilities not incurred in the line of duty; the law, as written, does not make this distinction. Therefore, the Early Qualification Retired Pay at Age 60 provision applies to all Selected Reserve Soldiers whether or not the physical disability was incurred or aggravated in the line of duty. A Soldier may not qualify for this entitlement if the disability was the result of the member’s intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention established by the Secretary concerned or the disability was incurred during a period of unauthorized absence. DISCUSSION: 1. By law and regulation, Reserve Component (RC) members normally are required to complete 20 years of qualifying service in order to be eligible for non- regular retirement. A qualifying year of service for non-regular retired pay is a full year during which a Regular or Reserve member is credited with a minimum of 50 retirement points. Because he did not complete 20 qualifying years of service, he does not qualify for a 20-year letter. 2. However, a member of the Selected Reserve who was medically disqualified for continued service in an RC could be considered as having met the service requirement and could be issued a Notification for Eligibility for Non-Regular Retired Pay at Age 60 (15-Year Letter), if the member completed at least 15 years, but less than 20 years of qualifying service for non-regular retirement purposes. 3. The evidence of record in this case confirms the applicant completed a total of 16 years, 8 months, and 5 days of qualifying service toward non-regular retirement before he was transferred to the Retired Reserve on 10 January 2007 for medical disqualification. As such, he met the statutory requirement for receipt of a 15-year letter. BOARD DATE: 12 April 2018 DOCKET NUMBER: AR20160007862 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected issuing the applicant a Notification of Eligibility for Retired Pay at Age 60 (15-Year Letter). 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160007862 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007862 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2