RECORD OF PROCEEDINGS


         IN THE CASE OF
        

         BOARD DATE: 19 February 2004
         DOCKET NUMBER: AR2003090188

         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Klaus P. Schumann		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Robert L. Duecaster		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, service credit for his time in the Inactive National Guard (ING) so that he will acquire sufficient points for retirement.

2. The applicant states, in effect, that five or six months prior to the expiration of his term of service (ETS), his commander asked him to reenlist for a period of three more years. He states that he declined and told his commander that he intended to ETS on his twentieth anniversary in the Hawaii Army National Guard (ARNG). He further states that upon the mobilization of his unit, he was informed that he would not be deploying with his unit because he had less than six months of service left before his ETS. However, he states that he was never told that he would be reassigned to an ING status or that this status would cause him to lose the right to any benefits.

3. The applicant further states that he was under the impression that he was still part of his unit in an "on call" status for the six-week period before his ETS. He later found out that he had been reassigned to another unit. However, his new unit did not communicate with him until he received his separation documents. He goes on to claim that his new unit did not advise him of his responsibilities in the area of drill performance and he was never properly counseled regarding his options or military status. The applicant concludes by stating that he faithfully performed his duties as a member of the ARNG for twenty years, in some cases in an unpaid status, and he believes he should receive full credit for a twenty-year retirement.

4. In support of his application, the applicant provides the following documents: a self authored letter, dated 14 April 2003; a letter to a Member of Congress, dated 26 January 2003; a letter from a Member of Congress to the Hawaii ARNG Adjutant General, dated 3 February 2003; a letter from the Hawaii ARNG Adjutant General to a Member of Congress, dated 18 February 2003; a copy of a Record of Military Status of Registrant (DD Form 44), dated 1 July 1968; a Report of Separation and Record of Service (NGB Form 22); a letter from a Member of Congress to the applicant, dated 29 January 2003; a letter from a Member of Congress to the applicant, dated 3 March 2003; a letter from a Member of Congress to the applicant, dated 5 March 2003; Hawaii ARNG Special Orders Number 82, dated 25 April 1968; an ARNG Retirement Points History Statement, dated 30 January 2003; an undated and unspecified document outlining the applicant's prior service; an Honorable Discharge Certificate, dated 22 June 1968; and three third party statements supporting application.

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CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of injustice which occurred on 22 June 1968. The application submitted in this case is dated 12 April 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant's records are unavailable for review. This case is being considered based on reconstructed records based on the documents submitted by the applicant that were identified in the preceding section of this document.

4. An NGB Form 22 on file confirms that the applicant served in the ARNG from 23 June 1948 through 22 June 1968. It shows that he was honorably discharged by reason of ETS. There is no indication that would indicate that his separation was involuntary or that the applicant was denied reenlistment at the time of his separation.

5. The last ARNG retirement points history statement applicable to the applicant is dated 30 January 2003. This document provides the service credit he earned between 23 June 1948 and 22 June 1968. It shows that he was credited with a total of 19 years, 10 months, and 4 days of the 20 years of qualifying service required to obtain eligibility for Reserve retirement benefits at age 60. This statement further shows that he earned at least fifty points towards retirement pay during each year he served, with the exception of his last year, during which he earned forty-nine points towards a qualifying year for retirement purposes, one point shy of the 50 points necessary to earn a qualifying year.

6. The applicant's military record contains a copy of State of Hawaii, Office of the Adjutant General, Special Orders Number 82, dated 25 April 1968, which directed the applicant’s reassignment from HHC (-), 1st Battalion, 299th Infantry to the ING, effective 27 April 1968, with further attachment to the 111th Army Band for administration and potential future assignment. The applicant's last ARNG annual statement of service, dated 30 January 2003, also confirms that he was assigned to the ING for the period 27 April 1968 through 22 June 1968 and that this was a non-creditable period of service for the purpose of determining eligibility for Reserve retirement benefits at age 60.

7. The applicant provides a third party statement, dated 4 April 2003, from a colonel in the Hawaii ARNG, who states that he was in the same unit as the applicant in 1968 at the time of the unit's mobilization. He further states that he was led to believe that those soldiers of the unit with six months of service or less would be allowed to complete their remaining service then be honorably discharged by their gaining unit.

8. The applicant also provides an additional third party statement, dated 25 February 2003, from the company commander of his unit at the time of its mobilization in 1968. This statement indicates that there is a possibility that the applicant was not properly informed of his options.

9. Army Regulation 135-180 (Qualifying Service For Retired Pay Non-regular Service) prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, United States Code, Chapter 67, sections 1331 to 1337. This regulation specifies, in pertinent part, that to be eligible for retired pay an individual must have attained age 60 and completed a minimum of 20 years of qualifying service and that subsequent to 1 July 1949, qualifying service is granted only for each year of service and individual earns 50 or more retirement points.

DISCUSSION AND CONCLUSIONS:

1. The applicant completed 20 years of service for longevity pay purposes, but only 19 years 10 months, and 4 days of qualifying service for non-regular retirement pay at age 60.

2. A third party statement submitted by the company commander of the applicant's unit at the time of its mobilization in May 1968, states that all unit members with less than one year of time in service remaining to their ETS were transferred to the ING and that there is a possibility that the applicant was not properly counseled regarding his options at that time.

3. Further, the account of the applicant’s former company commander is corroborated in an additional third party statement provided by a colonel in the Hawaii ARNG, who was also assigned to the same unit as the applicant at the time of the unit's mobilization in May 1968. This individual states that he was led to believe that the soldiers with six months of service or less would be allowed to complete their remaining service then be honorably discharged by their gaining unit.

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4. The evidence of record shows that the applicant received the sufficient number of retirement points, in most cases more than the required number, for each year preceding 1968. It also confirms that in 1968, he received 49 points, just one point shy of the 50 needed for a qualifying year for retirement. Thus, it is reasonable to presume that the applicant intended to gain sufficient retirement credit in order to receive retirement benefits at age sixty and that he would not have elected to enter the ING if he understood this would disqualify him from receiving retirement benefits at age 60.

5. Although it appears the applicant voluntarily separated from the ARNG after electing not to reenlist in order to deploy with his unit, based on third party statements provided, that there exists the possibility that the applicant was not fully aware of his options and/or the impact his transferring to the ING would have on his retirement entitlements.

6. In view of the facts of this case, given the applicant's record of consistency regarding his attainment of retirement points during each year prior to 1968 and as a matter of fairness and equity, it is appropriate to redistribute one of the
74 points the applicant earned during the retirement year that ended on 30 June 1967 to the retirement year ending on 26 April 1968, which would give him the
50 points necessary to earn an additional a qualifying year of service for
Non-Regular Retirement at age 60.


BOARD VOTE:

__RJW__ ___MM __ ___RLD GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

         a. revoking State of Hawaii, Office of the Adjutant General, Special Orders Number 82, dated 25 April 1968 reassigning the individual concerned to the ING;

         b. extending his assignment with the HHC, 1st Battalion, 299th Infantry for one month at the convenience of the Government;

c. redistributing one retirement point for the individual concerned from retirement year ending 30 June 1967 to retirement year ending on 26 April 1968, thereby giving the individual concerned the minimum fifty points required for a qualifying year of service for Non-Regular Retirement at Age 60;

d. issuing him a Certificate of Eligibility showing that he completed
20 years of qualifying service for Non-Regular Retired Pay at Age 60; and

         e. transferring him to the Retired Reserve effective 1 July 1968.

2. That the Defense Finance and Accounting Service provide the individual concerned all back pay and allowances due based on his eligibility to receive Non-regular Retired Pay at Age 60.




                  Raymond J. Wagner
                                             CHAIRPERSON

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INDEX

CASE ID	AR2003090188
SUFFIX
RECON
DATE BOARDED	2004/02/19
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.Res60	136.0400.0000
2.
3.
4.
5.
6.