RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 April 2005
      DOCKET NUMBER:  AR20040005103


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Mr. Larry J. Olson                |     |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, the spouse of the former service member (FSM), requests,
in effect, that the FSM be granted one additional qualifying year of
service in order to qualify for non-regular retired pay.

2.  The applicant states, in effect, that the FSM was short one year of
qualifying service for retired pay at the time of his discharge from the
United States Army Reserve (USAR) in 1980.

3.  The applicant also states that the FSM served in the Kentucky Army
National Guard (ARNG) from 24 October 1949 and 1 October 1950, and that
during this period he earned 73 points.  She claims this service should be
sufficient to cover the difference the FSM needs to qualify for non-regular
retired pay.  She also states that the FSM is terminally ill and requests
that this application be approved before he passes on.

4.  The applicant provides the FSM’s separation document (NGB Form 22) in
support of the application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 19 March 1980.  The application submitted in this case is
dated
9 June 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 FSM’s record contains a Chronological Record of Military Service
(ARPC Form 249-3), dated 3 July 2003.  This document was completed by a
supervisor of the Retirements and Annuities Branch, Army Reserve Personnel
Command (ARPERSCOM).  It shows that the FSM’s date of birth is 24 November
1933, and that he completed 14 years, 11 months and 2 days of active duty
service in the United States Air Force from 1 April 1951 through 28
February 1966.
4.  The ARPC Form 249-3 further shows that the FSM served in the United
States Army Reserve (USAR) from 24 April 1974 through 19 March 1980.
Finally, the document confirms that based on the service outlined on this
form, the FSM was credited with 20 years, 11 months and 2 days for
longevity pay purposes and 19 years, 11 months and 2 days of qualifying
service for retirement.

5.  Headquarters, Fifth United States Army Orders Number 146-217, dated
27 July 1979, authorized the FSM’s voluntary assignment from a USAR Troop
Program Unit (TPU) to the USAR Control Group on 30 May 1979.

6.  ARPERSCOM Orders Number 02-1009703, dated 27 February 1980, authorized
the FSM’s honorable discharge from the USAR on 19 March 1980.

7.  The applicant provides a NGB Form 22 that shows the FSM served in the
Kentucky ARNG from 24 October 1949 through 1 October 1950.  Item 26
(Retirement Credits Earned) of this document indicates the FSM earned
73 points during this period of ARNG service.

8.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular
Service) implements statutory authorities governing the granting of
"retired pay" to Soldiers and former Reserve Component (RC) Soldiers.
Chapter 2 contains the eligibility criteria for retired pay.  It states, in
pertinent part, that to be eligible for retired pay, an individual must
have attained age 60, completed a minimum of 20 years of qualifying service
and served the last 8 years of his or her qualifying service as a RC
Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for retired pay and the supporting documents
provided were carefully considered.  However, by law, in order to be
eligible for nonregular retired pay at age 60. a member must complete 20
years of qualifying service and the last eight years of qualifying service
must have been completed as a member of a RC.

2.  The evidence of record confirms the FSM voluntarily transferred to the
USAR Control Group in 1979, and that he was honorably discharged from the
USAR in 1980.  There is no indication that he was denied reenlistment or
the opportunity to continue his RC service at this time.

3.  Further, there is no indication that the FSM ever attempted to clarify
his retirement status, or that he made a good faith attempt to complete the
necessary qualifying service in the over 13 years that passed between the
date of his USAR discharge in 1980 and his turning age 60 in 1993.

4.  Even if the FSM were credited with an additional year of qualifying
service based on the 73 points he earned while serving in the Kentucky ARNG
between 1949 and 1950, he still would not be eligible for nonregular
retirement because he had not served the last eight years of his qualifying
service in a RC, as is required by the governing law and regulation.

5.  If there were any evidence indicating that the FSM attempted to resolve
his retirement status at anytime after his USAR discharge, or that he was
denied the opportunity to complete the necessary service to qualify for
nonregular retirement, perhaps there would be some equity basis to grant
the requested relief.  However, although his current illness is extremely
unfortunate, absent any evidence showing his discharge was anything other
than voluntary and/or that he was unjustly denied the opportunity to
complete the necessary qualifying service, there is an insufficient
evidentiary basis to support granting him retirement at this time.

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

7.  Records show the FSM and/or applicant should have discovered the
alleged error or injustice now under consideration on 19 March 1980.
Therefore, the time to file a request for correction of any error or
injustice expired on 18 March 1983. However, no application was filed
within the 3-year statute of limitations and the applicant 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

___LCB _  ___LJO__  ___RJW_  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.




            ____Raymond J. Wagner____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005103                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/04/19                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1980/03/19                              |
|DISCHARGE AUTHORITY     |Orders 02-1009703                       |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  338  |136.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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