ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20170012084 APPLICANT REQUESTS: correction of his records to show he completed sufficient qualifying years for Non-Regular retired pay at age 60. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Secretary of the Army correspondence, dated 25 April 2017 * Congressional correspondence, dated 28 February 2017 FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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: a.  He was injured during annual training at Fort Riley, KS, in 1993. b.  He was placed on the Temporary Disability Retired List (TDRL). c.  He was subsequently declared fit for duty and tried to reenter service in the Army National Guard. d.  He was incorrectly processed and sent to the Military Entrance Processing Station as a new recruit and he was denied entry. e.  He sought the assistance of his Congressional representative. f.  A review of his case by the National Guard Bureau and the Acting Secretary of the Army found an error in his records in his favor. g.  The Secretary of the Army approved his retirement under the provisions of Title 10, U.S. Code, section 12731b. 3. Having prior honorable enlisted service in the Regular Army, the applicant enlisted in the Army National Guard on 5 August 1977. 4. His DA Form 2173 (Statement of Medical Examination and Duty Status), dated 25 May 1992, states he was down range at Fort Riley, KS, on 23 May 1992 when a hatch lock pin came loose, causing it to strike the back of his helmet and causing him to lose consciousness. As a result, he experienced head and neck pain and double vision, and he was dispatched to the Irwin Hospital Emergency Room, Fort Riley, KS. 5. On 1 October 1992, his commander requested his evaluation by a medical evaluation board (MEB). His commander stated he was unable to perform his primary/duty military occupational specialty due to vision problems incurred as a result of being hit on the head by a tank hatch while attending annual training. 6. On 12 November 1992, he was evaluated for double vision by an MEB. The examining ophthalmologist concluded, "It is disturbing that I am unable to obtain any objective findings which correlate with his symptoms of binocular horizontal diplopia. However, by regulation, moderate to severe diplopia within 20 [degrees] of primary position is a reason to initiate a Medical Evaluation Board and that action is therefore recommended." The examining ophthalmologist found him not qualified for worldwide duty. 7. On 4 December 1992, the MEB established the diagnosis of double vision and recommended his referral to a physical evaluation board (PEB). The MEB results were forwarded to the Commander, Irwin Army Community Hospital, on 13 January 1993, requesting a PEB. 8. On 12 March 1993, the findings and recommendations of the MEB were approved and his case was forwarded to a PEB. On the same date, the applicant was issued a DA Form 3349 (Physical Profile) that listed his different levels of functional capacity in six factors (PULHES) as: * P – physical capacity or stamina – 1 * U – upper extremities – 1 * L – lower extremities – 1 * H – hearing and ears – 1 * E – eyes – 3 * S – psychiatric – 1 9. On 30 July 1993, the PEB found him physically unfit for double vision and recommended a disability rating of 30 percent and his placement on the TDRL with re-examination during January 1995. 10. On 13 August 1993, he concurred with the findings and recommendations and waived a formal hearing of his case. 11. On 14 September 1993, the findings and recommendations of the PEB were approved. 12. On 22 October 1993, he was released from duty, placed on the TDRL, and advised of periodic medical examinations. 13. On 23 January 1995, he underwent a periodic medical examination. The examining physician noted no clinically significant binocular deviation was observed. He was unable to obtain any objective findings which corroborate his symptoms of horizontal binocular diplopia. However, because he complained of moderate to severe diplopia within 20 degrees of primary position, the findings were forwarded to the PEB for final evaluation and disposition. 14. On 15 March 1995, the PEB determined he was physically fit and recommended his removal from the TDRL and return to duty. He was advised of his options. 15. On 23 March and 27 March 1995, he non-concurred with the findings, demanded a formal hearing, and requested regularly appointed counsel. 16. On 10 April 1995, he underwent a medical re-evaluation. The evaluating physician diagnosed him with iridocorneal endothelial syndrome. 17. On 17 April 1995, the approval authority for the applicant's re-evaluation approved the findings and recommendations of this evaluation. However, he did not approve the diagnosis and did not consider the clinical assessment a sound diagnosis for disability processing. 18. On 1 August 1995, the applicant was notified that he had been found fit for duty and was removed from the TDRL. He elected to reenlist in the Army National Guard within 90 days following his removal from the TDRL. 19. The applicant reached age 60 on 6 November 2012. 20. The applicant provided a copy of his Army National Guard Retirement Points History Statement, dated 3 February 2016, that shows he had 2,345 points for retired pay and 17 years of creditable service for retired pay. 21. His records are void of documents indicating he returned to service with the Army National Guard or was denied service in the Army National Guard. His records are also void of any evidence showing he was issued a notification of eligibility for retired pay (15-year letter). 22. On 25 April 2017, the Acting Secretary of the Army advised the applicant's Congressional representative that the Army National Guard Personnel Division conducted a review of the applicant's personnel records and determined he performed 17 years of honorable service as a traditional Guardsman in the Nebraska Army National Guard. He further stated, "We do recognize that an error was made and that [Applicant] is eligible for a non-regular retirement under 10 USC § 12731b [Title 10, U.S. Code, section 12731b]." BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, and evidence in the record. The Board reviewed the Acting Secretary of the Army letter that stated the applicant performed 17 years of honorable service as a Traditional Guardsman in the Nebraska Army National Guard and was discharged for a temporary disability. The Board concurs that an error was made and that the applicant is eligible for a non-regular retirement under I0 USC§ 12731 b. 2. After reviewing the application and all supporting documents, the Board found the relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for full relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: - Issuing the applicant a 15-year letter of notification of eligibility for non-regular retired pay at age 60; - Transferring him to the retired reserve effective 2 August 1995; - Paying him any retired pay due after reaching age 60 as a result of this correction. 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. ADMINISTRATIVE NOTE(S): not applicable. REFERENCES: 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. 2. Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, provided medical retention standards and was used by MEBs to determine which medical conditions were to be referred to a PEB. a.  Paragraph 3-3 stated Soldiers whose medical conditions failed retention standards were to be referred to a PEB, as defined in Army Regulation 635-40. The PEB would then make the determination of fitness or unfitness. b.  Chapter 7 provided guidance for the physical profile serial system. The profile is based on the function of body systems and their relation to military duties. There are six factors, designated as: * "P" for physical capacity or stamina * "U" for upper extremities * "L" for lower extremities * "H" for hearing * "E" for eyes * "S" for psychiatric d.  Each factor is assigned a numerical designation from 1 to 4. * "1" represents a high level of medical fitness * "2" means there are some activity limitations * "3" equates to significant limitation * "4" indicates defects of such severity military duty performance is drastically limited 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System and set forth policies, responsibilities, and procedures for the evaluation of Soldiers considered unfit to perform their military duties as a result of physical disability. a.  Chapter 3 stated the mere presence of impairment did not, of itself, justify a finding of unfitness because of physical disability. In each case, it was necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably could be expected to perform because of his or her office, rank, grade or rating. b.  Chapter 4 provided guidance for referring Soldiers for evaluation by an MEB when a question arose as to the Soldier's ability to perform the duties of his or her office because of physical disability. An MEB is convened to document a Soldier's medical status and duty limitations insofar as duty was affected by the Soldier's status. A decision is then made as to the Soldier's medical qualifications for retention based on the criteria found in Army Regulation 40-501. If the MEB determines the Soldier did not meet retention standards, the board would recommend referral to a PEB. 4. To be eligible for retired pay at age 60 under Title 10, U.S. Code, sections 12731-12737, a Reserve Soldier or former Reserve Soldier must have completed 20 qualifying years of service, the last 8 of which must have been in a Reserve Component. Service in an inactive Reserve section, such as the Retired Reserve, is not creditable for retirement purposes. A Reserve Soldier must have received a 15-year or a 20-year letter to be eligible to receive reserve retired pay. 5. 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 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, as of 1 October 1991, the member has completed at least 15 and less than 20 years of service computed under section 12732 of this title and upon the request of the member submitted to the Secretary, transfer the member to the Retired Reserve. 6. The 15-year notification of eligibility was enacted into law in 1999 under the provisions of Title 10, U.S. Code, section 12731b, and addressed members with physical disabilities that were not incurred in the line of duty. a.  When a member of the Selected Reserve no longer meets the qualifications to remain in the Selected Reserve solely because of being unfit due to a physical disability, and has at least 15 but not less than 20 years of service, the Secretary concerned may determine to treat that member as having met the service requirements issuance of a notification of eligibility. b.  Effective 12 March 2009, new guidance indicated the Early Qualification Retired Pay at Age 60 provision applied to all Selected Reserve Soldiers whether or not the physical disability was incurred or aggravated in the line of duty. ABCMR Record of Proceedings (cont) AR20170012084 6 1