BOARD DATE: 24 January 2020 DOCKET NUMBER: AR20180016677 APPLICANT REQUESTS: in effect, issuance of a 15 Year Notification of Eligibility (NOE) for Retired Pay at Age 60 (15 Year Letter). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Headquarters, 77th U.S. Army Regional Readiness Command Orders 03-225-00005, dated 13 August 2003 * Headquarters, 77th U.S. Army Regional Readiness Command memorandum dated 30 July 2004 * Honorable Discharge Certificate, dated 31 July 2005 * DA Form 5016 (Chronological Statement of Retirement Points), dated 21 September 2018 * DD Form 108 (Application for Retired Pay Benefits), dated 5 October 2018 * DD Form 2656 (Data for Payment of Retired Personnel), dated 5 October 2018 * Department of the Treasury Internal Revenue Service Form W-4P (Withholding Certificate for Pension or Annuity Payments), dated 5 October 2018 * Direct Deposit form, dated 5 October 2018 * U.S. Army Human Resources Command (HRC) letter, dated 7 November 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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. The HRC denial of her request for retired pay after 15 years of service should be overturned and her records should be corrected due to the fact she was medically discharged not due to any fault of her own. b. She has 15 “good” years of service and due to some oversight by her unit, her information was not forwarded to her. She was also very sick. Due to her illness and no communication from the unit, she did not receive her 15 Year Letter or it might have been lost in the mail. c. She would like to be compensated for her time because she was very sick and could not help herself. She was told she could she would apply for a pension at any time. She has enclosed all the documentation pertaining to the 15 Year Letter that is due to her. 3. The applicant’s date of birth is and she was appointed as a Reserve Commissioned Officer of the Army on 21 March 1990, at the age of 45. 4. Headquarters, 77th U.S. Army Regional Readiness Command Orders 03-225-00005, dated 13 August 2003, released her from her current assignment in the U.S. Army Reserve (USAR) at the 344th Combat Support Hospital in Brooklyn, NY and assigned her to the Retired Reserve, effective 13 August 2003, due to being medically disqualified, not the result of her own misconduct. 5. A review of the HRC, Soldier Management System (SMS) confirms a transaction was completed to discharge the applicant from U.S. Army Reserve (USAR) Troop Unit (TPU) service (current organization “H”) and reassign her to the USAR Retired Reserve (current organization “R”), effective 13 August 2003, then revoke that reassignment to the USAR Retired Reserve (current organization “R”) and reassign her back to the USAR TPU (current organization “H”), effective 1 September 2003. 6. Headquarters, 77th U.S. Army Regional Readiness Command Orders 04-034-00082, dated 3 February 2004, revoked or rescinded 77th U.S. Army Regional Readiness Command Orders 03-225-00005, dated 13 August 2003, which had released her from her assignment at the 344th Combat Support Hospital in Brooklyn, NY, and assigned her to the Retired Reserve. 7. A DA Form 67-9 (Officer Evaluation Report), covering the period 16 March 2003 through 15 March 2004, shows the applicant was rated as having outstanding performance in her duties as a critical care nurse in the Intensive Care Unit section of a USAR Combat Support Hospital. Although she had a permanent physical profile with Army Physical Fitness Test (APFT) limitations, she was able to complete her APFT with an alternate event to the run. Her senior rater deemed her fully qualified and noted she was a capable and dedicated Soldier who could assume greater responsibilities. 8. A DA Form 3349 (Physical Profile), shows she was given a permanent physical profile rating of “2” for her Type II Diabetes and a rating of “3” for disc disease in her neck on 30 July 2004. It was determined she did not meet retention standards and should not be assigned to an area where prolonged (greater than 2 weeks) consumption of combat rations were required. She should be medically discharged or referred to a non-duty related Physical Evaluation Board (PEB). 9. In a 30 July 2004 memorandum from her Regional Readiness Command, she was notified of her medical unfitness for retention as a result of her Diabetes Mellitus. She was informed she was afforded the following options as a result of her medical disqualification: a. She may request reassignment to the Retired Reserve. b. If she had at least 15, but less than 20 qualifying years of service for retired pay purposes, she may request reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60. c. She may request an honorable discharge from the USAR. d. She may request a review of her non-duty related medical disqualification by a PEB. 10. On 30 July 2004, she acknowledged notification of her medical unfitness for retention and the options available to her. a. By annotation of her initials on the acknowledgement, she opted to request an informal PEB to review her medical records for a final determination of her medical fitness for retention. b. She did not opt to request reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60 if she had at least 15, but less than 20 qualifying years of service for retired purposes. 11. A DA Form 199, shows a PEB convened on 12 October 2004 to make a Reserve Component non-duty related fitness determination. a. The PEB evaluated her medically unacceptable condition of Type II Diabetes Mellitus. Her permanent physical profile indicated she could perform all functional activities and perform the 2.5 mile walk in lieu of the 2 mile run for the APFT. Her commander stated she could perform her duties as required and her OERs reflected consistently satisfactory duty performance. Her physical profile indicated a limitation of no extended consumption of combat rations, which is a deployment consideration, with deployment being a commander’s decision. Non-deployability is not an unfitting condition. b. The PEB concluded she did not have any functional impairment which prevented satisfactory performance of duty and was found fit for duty in her current grade and specialty. 12. A memorandum from the U.S. Army Physical Evaluation Board, dated 12 October 2004, informed the applicant of the findings and recommendations of the PEB and advised her to indicate her concurrence or non-concurrence with the PEB’s findings within 10 days. 13. On 19 October 2004, the applicant signed and annotated on the DA Form 199 that she concurred with the PEB finding of fit for duty. 14. A DA Form 67-9, covering the period 16 March 2004 through 15 March 2005, shows the applicant was rated as having satisfactory performance in her duties as a critical care nurse in the Intensive Care Unit section of a USAR Combat Support Hospital. It was annotated she was in the discharge process due to meeting her mandatory removal date (MRD) at the age of 60 effective 31 March 2005. 15. Headquarters, U.S. Army Reserve Command Orders 05-194-00015, dated 13 July 2005, honorably discharged the applicant from the USAR effective the date of the orders under the provisions of Army Regulation 135-175 (Army National Guard and Reserve - Separation of Officers). 16. A further review of the HRC SMS, shows the applicant was discharged from USAR TPU service (current organization “H”) on 31 July 2005 and her record was archived (current organization “Y”) due to maximum authorized years of service. She was not transferred to the USAR Retired Reserve. 17. The applicant’s records are void of documentation showing she requested and was approved for early retirement eligibility at 15 years of service under the Temporary Early Retirement Authority (TERA) based on physical disability or any other criteria. 18. The applicant’s records do not contain a 15 Year NOE for Retired Pay at Age 60. 19. In a related but not identical case, the applicant previously applied to the ABCMR in January 2006, requesting physical disability retirement in lieu of honorable discharge, stating she erred when concurring with the PEB’s determination of her fitness for duty. Her request was denied, as the preponderance of the evidence showed her medical condition did not render her medically unfit. 20. The applicant provided a DA Form 5016, dated 21 September 2018, shows the applicant completed 15 years of qualifying service for retirement effective 31 July 2005. 21. On 5 October 2018, the applicant applied to HRC for retired pay benefits and on 7 November 2018, her application was denied. She was informed via letter from HRC Reserve Component Retirements that in order to be eligible for retired pay at age 60, a Reserve Soldier or former Reserve Solider must have completed a minimum of 20 qualifying years of service, the last 8 of which must have been in a Reserve component. An audit of her military records shows she completed 15 years, 0 months, and 0 days of qualifying service for retirement, rendering her ineligible to receive retired pay. Therefore, her application for retired pay was denied. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 2. In accordance with the governing law, Title 10 USC, section 12731a (Temporary special retirement qualification authority), which provided for a 15 year retirement eligibility letter was only for Soldiers who had completed 15 years between 23 October 1992 and ending 31 December 2001. The applicant did not complete 15 years until 2005. 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 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. Public Law 102-484, section 4403 of the Fiscal Year 1993 National Defense Authorization Act, dated 23 October 1992, was the first authorization to allow the U.S. Army to create an early retirement program, the Temporary Early Retirement Authorization (TERA) for Active Component and Active Guard and Reserve Soldiers who had completed 15 years of Active Federal Service (AFS), but less than 20 years of AFS at their separation date and who requested retirement in lieu of separation. The TERA was enacted by Congress to assist in the military drawdown of forces and to permit selected military members to retire early between 15 and 20 years of service and for Regular Army Soldiers to accrue additional military retirement points through service in Reserve Components (RC) or employment in qualifying public or community service organizations. The Secretaries of the respective services designated the ranks and military specialties that were eligible to apply according to the needs of the specific service. Retirement under this program was not a right; it was granted on an individual basis according to the requirements of the service. 3. Title 10 USC, section 12731 (Age and service requirements) provides the legal age and service requirements for age and service for Reserve non-regular retirement. It states that, upon application, a person is entitled to retired pay if the person has attained the applicable eligibility age, has performed at least 20 years of service computed under section 12732 of this Title; and is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve. 4. Title 10 USC, section 12731a (Temporary special retirement qualification authority) provides for retirement with at least 15 years of service. The Secretary concerned may, during the period described in the subsection below, determine to treat a member of the Selected Reserve of a RC of the armed force under the jurisdiction of that Secretary as having met the service requirements of 10 USC 12731, subsection (a)(2), 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 c. upon the request of the member submitted to the Secretary, transfer the member to the Retired Reserve. d. The period referred to above is the period beginning 23 October 1992 and ending 31 December 2001. 5. Title 10 USC, section 12731b (Special rule for members with physical disabilities not incurred in the line of duty), enacted 23 October 1992, provides in pertinent part that in the case of a member of the Selected Reserve of a RC 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 the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes as of 1 October 1991. This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180016677 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1