RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 MAY 2005
      DOCKET NUMBER:  AR20040005833


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Ms. John Slone                    |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Carmen Duncan                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

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

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that 1976 separation date be changed
to show that he was separated on 21 November 1976 vice 19 November 1976 so
as to have 2 complete years of active Federal service.  In the alternative,
he is requesting that his RYE (Retirement Year Ending) date in 1976 be
corrected in such a way so he would have a complete qualification year,
rather than merely 11 months and 28 days.

2.  The applicant states he believes that the credit of 11 months and 28
days “should be amended to 1 good year retirement credit (364 points), for
the year 1976.”  He states that the “364 retirement points far exceed the
required 39 days that are required in reserves [sic] status.”

3.  The applicant states that he served his country faithfully for over 20
years and feels that the Board “should amend this injustice” so that he may
receive his “20 yrs credit and letter of completing 20 yrs in November
2004.”

4.  The applicant provides a copy of his retirement point credit summary
prepared in January 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 19 November 1976 when he was released from active duty.
The application submitted in this case is dated 8 August 2004.

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 limitations 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.  Records available to the Board indicate that the applicant enlisted in
the Regular Army for a period of 2 years on 22 November 1974.  He was
released from active duty on 19 November 1976 and transferred to the United
States Army Reserve Control Group (Annual Training).  At the time of his
release from the Regular Army he had accumulated 1 year, 11 months, and 28
days of active Federal service.  His Reserve Component retirement point
credit summary notes that he was credited with 365 points for his first
year of active Federal service and 364 days of this final 11 months and 28
days of active Federal service.

4.  Army Regulation 140-185, states that after 1 July 1949 the retirement
year beginning date will be the date of initial entry or reentry (after a
break in service) into a Reserve Component.  Paragraph 1-4b(3) specifically
states that the retirement year beginning date for an individual
transferred to a Reserve Component upon release from active duty in a
regular component, will be the date of transfer to the Reserve Component.
The example cited is a Soldier who initially enlisted in the Regulation
Army on 1 April 1970 and was transferred to an active Reserve Component on
31 July 1973, the Soldier’s RY (retirement year) would be 31 July to 30
July.

5.  Upon his transfer to the United States Army Reserve Control Group,
following his release from the Regular Army, the applicant’s retirement
year was established as 20 November and the end date as 19 November.  For
the RYE dates of 19 November 1977, 1978, 1979, and 1980, the applicant
accumulated only 15 membership points for each year and as such, did not
acquire any “good years” during his initial Reserve Component service.

6.  On 21 November 1980 the applicant was honorably discharged from the
United States Army Reserve.

7.  The applicant’s retirement point credit summary indicates that he
returned to service as a member of a Reserve Component on 12 July 1985.
That date was then established as his new retirement year beginning date
and the RYE established as 11 July.  For RYE dates of 11 July 1986, 1987,
and 1988, the applicant acquired sufficient points each year for those
three years to count as “good years.”  He was discharged again from the
Reserve on 13 June 1989.

8.  The applicant returned, once again, to a Reserve Component on
20 November 1989 and a new retirement year was established as 20 November.
His RYE was then 19 November.  For RYE dates between 19 November 1990 and
19 November 2003 the applicant acquired 14 additional “good years.”  Based
on his prior 3 years of qualifying Reserve Component service he now had 17
qualifying or “good years” which, when added to his Regular Army service
gave him a total of 18 years, 11 months, and 28 years of satisfactory
service for retirement purposes.

9.  Army Regulation 140-185 states that only Ready Reserve Soldiers and
Active Standby Reserve Soldiers are authorized retirement point credit.

10.  Title 10, United States Code, sections 12731 through 12738 authorizes
retired pay benefits to members and former members of the Reserve
components who have completed a minimum of 20 qualifying years of service
and attained the age of 60.  While a qualifying year is determined to be a
full year in which a minimum of 50 retirement points have been credited for
a reservist, a full year (365 or 366 days, as applicable) is required for a
member of the Regular Army.

11.  Title 10 United States Code, section 3914, states that a Soldier who
has completed 20 but less than 30 years of active Federal service in the
United States Armed Forces may be retired at his or her request.

12.  Title 10, section 12733 states that for the purpose of computing the
retired pay of a person under this chapter, the person’s years of service
and any fraction of such a year are computed by dividing 360 into the sum
of the following:

      a.  the person’s days of active service;

      b.  the person’s days of full-time service under sections 316, 502,
503, 504, and 505 of title 32 while performing annual training duty or
while attending a prescribed course of instruction at a school designated
as a service school by law or by the Secretary concerned;

      c.  one day for each point credited to the person under clause (B),
(C), or (D) of section 12732(a)(2) of this title, within certain
limitations; and

      d.  one day for each point credited to the person under subparagraph
(E) of section 12732(a)(2) of this title.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had 1 year, 11 months, and 28 days of active Federal
service and not 2 years, in spite of the fact that his active service for
retirement pay calculation translated into 365 points for his first year of
active Federal service and 364 points for his final 11 months and 28 days
of active Federal service.  When his active Federal service time is added
to his years of qualifying service as a member of the United States Army
Reserve, he had a total of 18 years,
11 months, and 28 days of satisfactory service, for retirement purposes, as
of his RYE date of 19 November 2003.  He will need two additional
qualifying years in a Reserve Component before he has accumulated
sufficient satisfactory service to be eligible to receive retired pay at
age 60.

2.  The applicant’s argument that because he accumulated 364 retirement
points at the time of his release from active duty in 1976, which far
exceeded that “required in Reserve status,” he should now be granted a full
“qualifying” year, thereby negating the requirement for him to continue his
Reserve service beyond 19 November 2004, is without foundation.  To make
such an adjustment would suggest that one’s military service for Reserve
retirement purposes is predicated solely on the number of points an
individual accumulates and that once an individual has accumulated more
than 50 points, he should then be credited with a qualifying year of
service, even if a full retirement year had not been completed.  That same
logic could then be applied to transferring “excess” points around in order
to have a retirement year in which the individual may not have accumulated
the required 50 points recalculated to make that non-qualifying year a
qualifying year.

3.  Unlike “Regular” service retirement, which is tied to 20 years of
active Federal service, qualifying service for Reserve retirement is tied
to points accumulated during a 12 month retirement year.  While one’s total
active Federal service and one’s qualifying years of Reserve component
service may be added together for the purpose of accumulating satisfactory
service for Reserve retirement, the computation, for retirement purposes,
are not interchangeable.

4.  The applicant’s RYE was correctly established when he was released from
active duty and transferred to the United States Army Reserve in 1976, and
when he returned to service in a Reserve Component in 1985 and in 1989
following breaks in his military service.  There is no evidence that his
release from active duty in 1976 was erroneous and there is no basis to
adjust his RYE in order for his period of active Federal service between 22
November 1974 and
19 November 1976 to equal 2 full years of active Federal service.

5.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 November 1976; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
18 November 1979.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JS___  ___RD __  ___CD __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _______John Slone______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040005833                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050517                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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