2. The applicant requests that he be credited with 20 years of qualifying service for retired pay.
3. He states that he was told that he had 20 qualifying years of service when he was discharged. He was later told that he only had 19 years, 11 months and 28 days of qualifying service and, therefore, was not entitled to retired pay.
4. The applicant's military records show that he was born on 26 February 1932. He enlisted in the Army National Guard (ARNG) on 1 March 1949 at the age of 17, served continuously through reenlistments and extensions, served as a wireman, personnel carrier driver and senior vehicle repairman, and was honorably discharged at the expiration of his term of service on 28 February 1969 in pay grade E-5. He had turned age 37 two days before his discharge. The NGB Form 22, Report of Separation and Record of Service in the Army National Guard and as a Reserve of the Army, he was issued, item 26 (length this service) and item 27 (total service for pay purposes) both have 20 years, 0 months and 0 days entered.
5. Contained in the applicants records is an endorsement from the applicants ARNG state adjutant general, dated 18 June 1968, wherein it was stated that the applicant had accrued 18 years, 3 months and 30 days of creditable service as of 30 June 1968.
6. Also contained in the applicants records is an NGB Form 22A, Correction to NGB Form 22, dated 24 March 1969, wherein item 26 (length this service) was changed from 20 years to 7 years, 11 months and 28 days, and item 27 (total service for pay purposes) was changed from 20 years to 19 years, 11 months and 28 days.
7. Title 10, U.S. Code, section 1331, provides for the retirement of Reservists, upon application, who have at least 20 years of qualifying service for retired pay (a qualifying year of service is one in which the Reservist earns at least 50 retirement points) when they reach the age of 60.
8. In the processing of this case an advisory opinion was obtained from the NGB. The NGB confirmed that the applicant has 19 years, 11 months and 28 days of qualifying service, and opines that the applicant had reason to believe that he had completed 20 years of qualifying service since after he had been notified that he had completed 18 years, 3 months and 30 days of service, he served an additional 1 year and 8 months from the date of that notification, which would appear to give him 20 years of service.
CONCLUSIONS:
1. The evidence of record supports the NGBs assessment that the applicant had reason to believe that he had completed 20 years of qualifying service.
2. It is reasonable to presume that the applicant did not receive the correction to his NGB Form 22. It is incomprehensible to think that an individual who after completing 19 years, 11 months and 28 days of continuous qualifying service for retired pay and requires only 2 more days of drills, one weekend, to qualify for such pay would not have taken some action, such as extending his enlistment, to perform that duty.
3. Further, an individual who has completed more than 18 years of qualifying service should be retained until completion of 20 years of service unless separated sooner for cause. The mere correction of his NGB Form 22 does not suffice to ensure his rights are protected. Because of problems like this, the law now states that if a soldier has over 18 years of service, he must be counseled and must not be prevented from extending his enlistment to the date he reaches retirement eligibility, providing he or she is otherwise qualified. The Board believes that these current standards should be applied in the applicants case.
4. As such, the Board considers that the mistake made by the ARNG in calculating his qualifying service resulted in the applicants separation 2 days prior to his accruing sufficient qualifying service to collect retired pay at age 60. The applicant should not be penalized for that mistake.
5. In view of the preceding conclusions, it would be in the interest of justice to credit the applicant with 20 qualifying years of service, as he had been told that he had completed.
6. In view of the foregoing, the applicants records should be corrected as recommended below.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected:
a. by issuing to the individual concerned a 20-year letter certifying his eligibility for retired pay at the age of 60;
b. by crediting him with 20 years, 0 months and 0 days of qualifying service; and
c. by showing that he applied for retired pay in a timely fashion.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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