ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 May 2019 DOCKET NUMBER: AR20170003197 APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show 15 year letter medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Forms 149 (Application for Correction of Military Record) * Applicant email FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he was never offered a medical hardship discharge in 2007, or in 2011. And if his leadership had been aware of his medical bar to reenlistment a medical board should have been schedule for him. He was assigned to the former 890th Transportation Company that was being deactivated at the time. He was assigned to the 353 Transportation Company but this assignment caused hardship for the applicant because of the travel distance. He was never offered a medical discharge while he was deployed with the 353 Transportation Company. The memorandum dated 1 October 2007 stated the applicant is medically unfit for retention. 3. A review of the applicant’s service records shows the following: a. The applicant enlisted in the Army National Guard (ARNG) on 25 January 1996. He was honorably discharged from ARNG on 21 January 2002. He completed 5 years, 11 months and 27 days of active duty service. b. He enlisted in the U.S. Army Reserve on 22 January 2002. c. He entered active duty on 7 December 2003. He served in Iraq from 18 February 2004 to 22 February 2005. He was honorably released from active duty on 25 March 2005. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 years, 3 months, and 19 days of active service. d. The applicant provides and his records contain DA Form 3349, (Physical Profile) dated 11 July 2007 showing the following permanent medical conditions: * Depression 4. Hx of Bronchitis * SLEEP APNEA-with C-PAP * Left knee pain-surgery pain 2005 Bil great toe pain * Abnormal Labs e. On 1 October 2007, soldier received an Notification of Medical Unfitness for Retention memorandum. Soldier was determined, as a result of his medical examination, to be medically disqualified for continued service in the U.S. Army Reserve under the provisions of AR 40-501, (Standards of Medical Fitness) Chapter 3. f. On 15 November 2010, soldier was counseled, refer his desire to transfer to the Individual Ready Reserve (IRR). Soldier extended one year to have enough contractual time left to do this. This would allow the soldier time to find a new unit. g. He was honorably discharged from the U.S. Army Reserve on 27 December 2011 in accordance with Army Regulation 135-178 (Army National Guard and Reserve Enlisted Administrative Separations). h. His DA Form 5016 (Chronological Statement of Retirement Points) show he completed 17 years, 5 months; and 18 days qualifying years of service toward non-regular retirement. 4. On 15 May 2017, Army Review Boards Agency (ARBA) obtained an advisory opinion from a U. S. Army Human Resources Command. The Reserve Component Retirement Branch (RCR) advisor stated: a. Review of the documentation found applicant has 17 years, 5 months; and 18 days of qualifying service. To be eligible for a 15 year retirement, a Soldier must be medically retired or serving in a unit that was being downsized, deactivated, or relocated at the time the Soldier attained 15 years. b. It is the opinion of the RCR Branch that applicant was determined medically unfit for retention on 1 October 2007. He had the option at that time to be placed in the Retired Reserve with having at least 15 but less than 20 qualifying years of service for retired pay purposes with early qualification eligibility to receive pay at age 60. He. continued to serve until he was honorably discharged for expiration of service obligation on 27 December 2011. Therefore, the RCR Branch has to deny his 15 Year Letter. 5. The applicant was provided a copy of the advisory opinion and given the opportunity to provide a rebuttal, however, he did not respond. 6. By law and regulation, Reserve Component 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. 7. The law further states that a member of the Selected Reserve who was medically disqualified for continued service in an Reserve Component 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the finding of the RCR Branch and the lack of a rebuttal statement submitted by the applicant on those findings, the Board concluded there was insufficient evidence to show an error or injustice which would warrant changing the applicant’s record. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, section 12731, provides that a non-regular service member is entitled, upon application, to retired pay if the person is at least 60 years of age; has performed at least 20 years of qualifying service; and, having completed the service requirement during the period beginning on 1 October 1994 and ending on 30 September 1999, shall have performed the last 6 years of qualifying service while a member of an RC (this was changed to zero in 2005) 3. Title 10. U.S. Code, section 12731 (Temporary special retirement qualification authority) (a) (Retirement With At Least 15 Years of Service), states 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 an RC 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. AR 135-180 (Retirement for Non-Regular Service), Para 2-2, states that a Reserve Soldier requesting a 15 year retirement under Title 10 USC 12732 must be separating because they have been determined to be unfit for continued Selected Reserve Service. ABCMR Record of Proceedings (cont) AR20170003197 4 1