APPLICANT REQUESTS: That he be granted a waiver of 6 months of qualifying service in order to be eligible for transfer to the Retired Reserve. He states, in effect, that he believes he has enough service; however, the last computation he received shows that he is 6 months short of having 20 qualifying years of service to be eligible to receive retirement pay at age 60. He goes on to state that he was discharged from the National Guard by a racially prejudiced commander and that he has been unable to enlist in a USAR unit to complete the 6 months he needs to qualify for retirement.
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant was inducted on 14 August 1961 and served until 13 August 1962 when he was honorably discharged and transferred to the USAR. On 23 August 1963 he enlisted in the Regular Army and served until he was honorably discharged on 24 September 1968.
He had no military status from 25 September 1968 through 4 December 1969.
On 5 December 1969 he enlisted in the Navy and served until he was honorably discharged on 6 May 1974.
He had no military status from 7 May 1974 through 14 May 1974.
On 15 May 1974 he enlisted in the Air Force Reserve and served until he was honorably discharged on 14 May 1977.
On 15 May 1977 he enlisted in the California Army National Guard and continued to served until he was discharged on 29 September 1983. The facts and circumstances surrounding his discharge are not present in the available records.
The Army Reserve Personnel Center (ARPERCEN), on 30 March 1988, in response to an inquiry from the applicant regarding his retirement eligibility, provided the applicant with a chronological record of his military service (DARP Form 249-3). It indicated that the applicant had 20 years, 10 months, and 26 days of service for pay purposes but only 19 years, 6 months, and 4 days of qualifying service for retirement purposes.
The ARPERCEN also informed the applicant that in accordance with Title 10, U.S. Code, sections 1331 and 1337, eligibility for retired pay at age 60 for Reserve service requires a minimum of 20 qualifying years of service and that a qualifying year of service is one in which a Reservist earns a minimum of 50 retirement points during that year. The ARPERCEN further informed the applicant that if he disagreed with the service computation he could apply to this Board.
There is no evidence in the available records to show that the applicant has performed any service other than that listed on the DARP Form 249-3 prepared by the ARPERCEN on 30 March 1988.
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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 29 September 1983, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 29 September 1986.
The application is dated 16 May 1994 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.
BOARD VOTE:
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
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