RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           31 March 2005
      DOCKET NUMBER:  AR20040002983


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 that his records be corrected to show his
retired pay was increased for years of service when he reached age 60.

2.  The applicant states that the records should show that he has 22 years
of service.

3.  The applicant provides a DD Form 108 (Application for Retired Pay
Benefits); a DA Form 4240 (Data for Payment of Retired Army Personnel); an
NGB Form 22 (Report of Separation and Record of Service); three NGB Forms
23 (Army National Guard Retirement Credits Record); a letter dated 4
October 1976; a DD Form 214 (Report of Separation) for the period ending 2
May 1953; discharge orders dated 14 August 1984; and orders to report for a
medical evaluation dated 2 August 1983.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not respond within the given time frame.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 11 September 1989.  The application submitted in this
case is dated 14 May 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.  The applicant was born on 11 September 1929.  After having had prior
service in the Regular Army, the U. S. Army Reserve, and the Army National
Guard (ARNG), he enlisted in the ARNG on 7 December 1974.

4.  The applicant's notification of eligibility for retired pay (his 20-
year) letter is not available; however, it appears from the provided NBG
Forms 23 and his previous 3 years in the Regular Army that he had completed
20 qualifying years of service for a nonregular retirement by his
separation date in August 1984.
5.  The applicant was apparently involved in a motor vehicle accident
around 1980 or 1981.  His injuries were determined to have been in the line
of duty.  In October 1982 and again in March 1983, the applicant's unit
requested he be medically evaluated to determine whether he was fit for
retention.

6.  By letter dated 13 July 1984, the U. S. Army Military Personnel Center
informed the applicant that he was found to have a disability and he was
placed on the Permanent Disability Retired List with a disability rating of
30 percent.

7.  State of New York, Executive Department, Division of Military and Naval
Affairs Orders 157-209 dated 14 August 1984 discharged the applicant from
the ARNG and assigned him to the U. S. Army Reserve Control Group (Retired)
effective 10 August 1984.

8.  Records at the Defense Finance and Accounting Service show the
applicant was issued his first retired pay check on 1 September 1984.

9.  The applicant turned age 60 on 11 September 1989.  He submitted a DD
Form 108 applying for retired pay on 7 July 1994.

10.  Army Regulation 135-180 implements statutory authorities governing the
granting of retied pay to Soldiers and former Reserve component Soldiers.
In pertinent part, it states that service in the Retired Reserve is not
creditable as qualifying service for use in determining retired pay.

11.  The Department of Defense Financial Management Regulation, Volume 7B,
paragraph 010107B states, in pertinent part, that the disability retired
pay of a Reserve component member is calculated as the sum of (1) all days
of active service; (2) all days of full-time service while performing
annual training duty or attending prescribed periods of instruction
designated as a Military Service school by law or by the Secretary
concerned; and (3) one day for each point credited for attendance at a
drill or other authorized duty divided by 360.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was transferred to the
Retired Reserve on 10 August 1984 as a result of physical disability and
received his first retirement check on 1 September 1984.

2.  Although the applicant turned age 60 in September 1989, there was no
need for him to apply for retired pay (whether in 1989 or, as he actually
did, in 1994) as he was already receiving retired pay.

3.  Service in the Retired Reserve is not creditable as qualifying service
for use in determining retired pay; therefore, the applicant's service for
retired pay is based on his service as of 10 August 1984.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 September 1989, the date he turned
age 60; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 10 September 1992.
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

__wdp___  __rjw___  __lgh__  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.




            __William D. Powers___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002983                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |128.14                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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