RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           17 May 2005
      DOCKET NUMBER:  AR20040006942


      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. John N. 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 he be issued a notification of
eligibility for retired pay at age 60 (a 20-year letter).

2.  The applicant states, in effect, that he was in the Army from 3 January
through 6 April 1943.  That time should be counted as qualifying time,
thereby showing he completed over 20 years of qualifying service for a
nonregular retirement.

3.  The applicant provides a letter of support, dated 25 November 2003,
addressed to his Senator; a letter dated 9 November 1967; a letter dated
       28 September 1967; his appointment orders; and a certificate of
completion for the Officers' Basic Course.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on or about 6 February 1969, the date he was notified the
Army Board for Correction of Military Records (ABCMR) denied his original
application.  The application submitted in this case was received in this
office 10 September 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 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 6 May 1924.  On 31 March 1942, while in the
Reserve Officers' Training Corps (ROTC), he applied for an appointment as a
Reserve officer.  He graduated from school in June 1942.  Letter Orders
dated
17 December 1942 directed him, as an ROTC student, to travel on temporary
duty status to attend Officer Candidate School (OCS).  On 24 December 1942,
he applied for appointment again.  A WD AGO Form 131 (Student's Record –
Reserve Officers' Training Corp) shows he was recommended for commission in
the Officers' Reserve Corps when he had completed the required OCS.

4.  The applicant attended OCS from 5 January 1943 to 7 April 1943.  He was
appointed and commissioned in the Army of the United States effective 7
April 1943.  Headquarters, The Infantry School Special Orders Number 85
dated        7 April 1943 addressed the applicant and about 50 other
members of that OCS class as "(recent ROTC grads)."

5.  The applicant served on active duty from 7 April 1943 through 25 June
1946.  He was apparently transferred to the inactive Reserve.  Item 23
(Remarks) of his WD AGO Form 100 (Separation Qualification Record) contains
the entry, "Served as enlisted man in the United States Army from 3 January
1943 to         7 April 1943."

6.  There is no evidence of record to show the applicant was enlisted or
inducted as an enlisted man.

7.  On 15 February 1949, the applicant was transferred to the inactive
Reserve.   On 6 January 1951, he was called to active duty.  He was
transferred to the Ready Reserve on 6 January 1953.

8.  By letter dated 3 September 1965, the XIV U. S. Army Corps informed the
applicant that he was being transferred from the XIV U. S. Army Corps
Control Group Reinforcement to the U. S. Army Administration Center (USAAC)
Control Group Reinforcement due to the centralization of all Ready Reserve
Control Groups at the USAAC.  In response to this letter, on 9 September
1965 he inquired as to when he would have completed sufficient good
retirement years to enable him to transfer to the Retired Reserve.

9.  The USAAC responded to the applicant's inquiries by letter dated 6
January 1966.  He was provided a statement of service and informed that, if
he accrued 50 points during his current retirement year, he would have over
20 qualifying years and could request transfer to the Retired Reserve.  He
was requested to indicate his desire on an attached form.  He apparently
did so and was thereupon transferred to the Retired Reserve effective 21
January 1966.

10.  By letter dated 26 September 1967, the USAAC informed the applicant
that, while records indicated he served in an enlisted status from 3
January 1943 to     6 April 1943, no enlisted records for that period could
be located.  He was requested to provide substantiating evidence.  By
letter dated 3 October 1967, he provided his OCS documents.

11.  By letter dated 9 November 1967, the USAAC informed the applicant that
his military status from 3 January to 6 April 1943 could not be verified;
therefore, he was 1 month and 22 days short of qualifying for retired pay
benefits at age 60.  He was informed that, because the error in computation
was made prior to the certification required by Public Law 652, 89th
Congress, enacted 14 October 1966, there was no administrative means which
would permit the waiving of the 20-year requirement.  He was informed he
was entitled to request revocation of his transfer to the Retired Reserve.
He would be restored to an active status and could earn retirement points.
By earning retirement points, he could accrue credit for 1 month and 22
days on a prorated basis and immediately request transfer to the Retired
Reserve.  He would need to accrue a minimum of 8 points during the period 6
January through 27 February 1968, 2 of those 8 points would be awarded for
membership.

12.  By letter dated 22 November 1967, the applicant reminded the USAAC of
the 6 January 1966 letter they had sent to him.  He stated, however, that
if there was nothing that could be done he requested a transfer back to an
active status and advice on how best to acquire the necessary additional
points.  By letter dated 3 January 1968, the USAAC informed the applicant
that they had not received a reply to their 9 November 1967 letter.  By
letter dated 15 January 1968, the applicant informed the USAAC that he had
responded (with his           22 November 1967 letter).  He requested
alternate suggestions since it was already too late to become active again
as of 6 January 1968.

13.  Page one of a letter dated 7 February 1968 is missing, but the second
page apparently is a continuation of a discussion on how the applicant
could earn the retirement points required to earn him his 20th qualifying
year.  This letter also informs him on how to apply to the ABCMR.  A
memorandum for record on this letter indicated the applicant had been
telephonically informed on 31 January 1968 how he could accrue the needed
points on a prorated basis or by earning 50 points by 5 January 1969.  He
had indicated he would prefer to earn the required points on a prorated
basis beginning with retirement year beginning       6 January 1969.  He
further stated he would like to apply to the ABCMR.

14.  On 14 March 1968, the applicant applied to the ABCMR requesting that
his records be corrected to show he had completed 20 years of qualifying
service.  By memorandum dated 18 April 1968, the ABCMR requested The
Adjutant General inform him that his application had been denied.  (This
was apparently an administrative close of his case.)  The Adjutant General
so informed the applicant by letter dated 4 February 1969.  The delay was
due because that office was awaiting a response from the Staff Judge
Advocate.

15.  There is no further evidence of record to show the applicant
corresponded with the USAAC or its successor organizations until his
Senator contacted the   U. S. Army Reserve Personnel Command on 10 April
2003.

16.  In the processing of this case, an advisory opinion was obtained from
the    Retirements and Annuities Section, Transition and Separation Branch,
U. S. Army Human Resources Command – St. Louis.  That office (erroneously)
noted that the applicant had already been credited with the period of time
he spent in OCS.

17.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He did not respond within the given time frame.

18.  Title 10, U. S. Code, sections 12731 through 12740 authorize retired
pay for Reserve component military service.  Under this law, a Reserve
soldier must complete a minimum of 20 qualifying years of service to be
eligible for retired pay at age 60.  The term “good years” is an unofficial
term used to mean years in which 50 or more retirement points are earned
during each year and which count as qualifying years of service for
retirement benefits at age 60.

19.  Public Law 89-652, enacted 14 October 1966 added subsection (d) to
section 12731 of Title 10, U. S. Code, which states that the Secretary
concerned shall notify each person who has completed the years of service
required for eligibility for retired pay.  The notice shall be sent, in
writing, to the person concerned within one year after the person completes
that service.  Section 12738(a) states that after a person is notified that
he or she has completed the years of service required for eligibility for
retired pay, the person’s eligibility for retired pay may not be denied or
revoked on the basis of any error, miscalculation, misinformation, or
administrative determination of years of service unless it resulted
directly from the fraud or misrepresentation of the person.

20.  Title 10, U. S. Code, section 12732 states that, for the purpose of
determining whether a person is entitled to retired pay under section
12731, the person's years of service are computed by adding the person's
years of service, before 1 July 1949, in (a) the Armed Forces; (b) the
federally recognized National Guard before 15 June 1933; (c) a federally
recognized status in the National Guard after 14 June 1933; (d) the
National Guard after 14 June 1933; (e) the Naval Reserve Force; (f) the
Naval Militia; (g) the National Naval volunteers; (h), the Army Nurse
Corps, the Navy Nurse Corps, the Nurse Corps Reserve of the Army, or the
Nurse Corps Reserve of the Navy; (i) the Army under an appointment under
the Act of 22 December 1942; or (j) an active full-time status with the
Medical Department of the Army under certain conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant may have worn an enlisted man's uniform and he may have
received the pay of an enlisted man while at OCS, but the preponderance of
the evidence of record shows he was not in the Army during the time he
attended
OCS.  Letter orders dated 17 December 1942 and a WD AGO Form 131 indicate
quite clearly that he maintained his student/ROTC status while in OCS.
This evidence is more contemporaneous than later evidence (such as his 1946
WD AGO Form 100) which indicates he served as an enlisted man.

2.  The Board recognizes that the applicant was told in January 1966 that,
if he earned 50 retirement points that retirement year, he would have
completed       20 qualifying years of service.  It appears he requested
transfer to the Retired Reserve based on that information.  The requirement
to issue a 20-year letter was not enacted until later that year.  Since he
had not received his 20-year letter, when the miscalculation was discovered
he was without recourse to becoming eligible for retired pay unless he
returned to an active status.

3.  Admittedly it was through the applicant's own initiative that it was
discovered he did not have the 20 qualifying years.  However, he was
notified shortly after he transferred to the Retired Reserve of the error
and how it could be rectified.  In November 1967 and again in January 1968
he was informed how he could accrue the needed points.  At that time he had
indicated he would prefer to earn the required points on a prorated basis
beginning with retirement year beginning 6 January 1969 and further stated
he would like to apply to the ABCMR.  He applied to the ABCMR, and was
finally notified in February 1969 that the ABCMR denied his application.

4.  The applicant was 45 years old at that time he was notified the ABCMR
had denied his application.  He had a number of years before reaching age
60 in which he could have implemented the USAAC's recommendations to earn
the required points.  The Army made an error in computing his retirement
points and qualifying years for retirement but then made a good faith and
reasonable effort to assist him in overcoming that error.  There is no
evidence of record and he provides no evidence to show that he made another
inquiry into the matter until April 2003.  Therefore, there is insufficient
evidence that would justify granting the applicant's request based on
equity.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on or about 4 February 1969, the date he
was notified the ABCMR denied his application; therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 3 February 1972.  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

__jns___  __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 N. Slone______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040006942                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050517                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |135.02                                  |
|2.                      |136.03                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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