RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           28 June 2005
      DOCKET NUMBER:  AR20040008599


      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. Joe R. Schroeder              |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's records be corrected to include
the      15 points he should have been awarded for Reserve membership for
1949 and to show he qualified for a non-Regular retirement with all due
back pay.

2.  Counsel states that the applicant served on active duty in the U. S.
Army Reserve (USAR) (sic) from 17 August 1948 until 16 August 1949 when he
was transferred to the USAR.  Although he served the rest of the year in
the USAR he was not credited with the 15 points he earned by reason of his
membership in the USAR.  Thereafter, he served on active duty from 29 July
1952 until 4 June 1954.  His record shows that he had served 5 years, 9
months, and 17 days on active (sic) duty, net for pay purposes.  In
addition to his active duty service, he served in the USAR for 24 years
until he was involuntarily discharged on 18 May 1990.  His records show
that he should not have been discharged because he had achieved 18 "good
years" of active service at the time of his discharge.

3.  Counsel states that the applicant's Chronological Statement of
Retirement Points shows the ending date for his service in the first year
was computed, erroneously, as the end of the fiscal year, rather than the
end of his one year enlistment.  This is the only year that is computed in
this manner.  Had it been based upon the one year of actual service ending
on the anniversary date of     16 August 1949, rather than 30 June 1949,
the applicant would have been credited with a "good year" for retirement
purposes for 1949 through 1950.  Instead, the year was unreasonably split
into two parts – the 47 days of active duty in the Army of the United
States (AUS) and 28 points earned through inactive duty and membership
points.  Had this year not been erroneously split, he would have had over
19 years of creditable service.

4.  Counsel states that, regardless of whether the applicant served for 18
or       19 years of creditable service, his service should not have been
terminated as it was.  An enlisted Reserve member in an active status who
served at least        18 years but less than 20 years may not be
discharged from a Reserve component until the member reaches 20 years of
service and qualifies for retirement.  He was erroneously discharged.

5.  Counsel provides a DARP Form 249 (Chronological Statement of Retirement
Points) dated 8 October 1993; discharge orders dated 18 May 1990; two
letters, dated 4 June 2003 and 25 August 2003, from the National Personnel
Records Center; a WD AGO Form 53-280 (Enlisted Record and Report of
Separation Certificate of Service); and a DD Form 214 (Report of Separation
from the Armed Forces of the United States).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 18 May 1990.  The application submitted in this case is
dated           5 October 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 24 January 1930.  He enlisted on 17 August
1948 and served in the AUS until he was released from active duty on 16
August 1949 and transferred to the Enlisted Reserve Corps to complete his 6
year service obligation.

4.  The applicant enlisted in the Regular Army on 29 July 1952 and was
honorably discharged on 4 June 1954.

5.  After a complete break in service, during which time he was awarded a
law degree, the applicant enlisted in the USAR on 24 July 1975.  He
actively served in the USAR (except for retirement year ending (RYE) 23
July 1987, when he earned only 24 retirement points).  He last reenlisted
on 19 May 1984 for 6 years.

6.  The applicant turned age 60 in January 1990 and Headquarters, Second U.
S. Army Orders 28-7 dated 31 January 1990 discharged him from the USAR
effective 31 January 1990.  U. S. Army Reserve Personnel Center Orders D-05-
038076 dated 16 May 1990 discharged him from the USAR effective 18 May 1990
(upon his expiration term of service).

7.  The applicant's DARP Form 249 dated 8 October 1993 shows his first
retirement year beginning date as 17 August 1948 and his first RYE as 30
June 1949 during which period he had 10 months and 14 days of qualifying
service for
retirement.  His next retirement year began on 1 July 1949 and ended on
      16 August 1949 during which period he had 1 month and 16 days of
qualifying service.

8.  The applicant's DARP Form 249 shows his next two RYEs as 16 August
(1950 and 1951) until he was separated from the USAR on 28 July 1952 (RYE
28 July 1952).  He had earned a qualifying year during RYE 16 August 1951
but had not earned 50 retirement points during RYE 16 August 1950.  He was
awarded 15 membership during both RYEs 16 August 1950 and 16 August 1951.
He was awarded 14 membership points during RYE 28 July 1952.

9.  The applicant's DARP Form 249 shows that his next retirement year began
on 29 July 1952 upon his enlistment in the Regular Army and ended on 16
August 1952.  His RYE remained 16 August until he was discharged from the
Regular Army when it changed to 4 June 1954.

10.  The applicant's DARP Form 249 shows the applicant's break in service
from 5 June 1954 through 23 July 1975.  His retirement year began again on
24 July 1975 and thereafter ended on 23 July.  His DARP Form 249
erroneously continues beyond the date (either January 1990 or May 1990)
when he was discharged from the USAR, awarding him 15 membership points for
RYEs during which he had no military status.

11.  The applicant's DARP Form 249 shows he completed 16 years, 10 months,
and 8 days of qualifying service for retirement.  He had earned 13 of those
qualifying years between the retirement years beginning with his enlistment
in the USAR on 24 July 1975 and his discharge during RYE 23 July 1990.  He
had earned 10 months and 14 days during his initial RYE 30 June 1949 and 1
month and 16 days for the retirement year beginning 1 July 1949 and RYE 16
August 1949 (that is, 1 full qualifying year for the year 17 August 1948
through 16 August 1949).  He had 1 qualifying year for RYE 16 August 1951
and 1 qualifying year for RYE 16 August 1953.

12.  The applicant's DARP Form 249 shows his remaining 10 months and 8 days
of qualifying service during the partial (19 day) period from when he
enlisted in the Regular Army on 29 July 1952 until his partial (9 months
and 19 days) after he was discharged from the Regular Army on 4 June 1954.

13.  In the processing of this case, an advisory opinion was obtained from
the Retirement and Annuities Section, Transition and Separation Branch, U.
S. Army Human Resources Command – St. Louis, MO.  That office stated that
the applicant was not entitled to 15 more points and did not meet the
qualifications for retirement with 20 qualifying years of service.
14.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  Through counsel, the applicant stated that the
advisory opinion failed to address the applicant's material contentions and
failed to provide the factual and legal rationale supporting the
recommendation.  Had the ending year for the applicant's first year of
service been correctly computed based upon the one year of actual service
ending on the anniversary date of 16 August 1949, rather than 30 June 1949,
he would have been credited with a "good year" for retirement purposes for
1949 through 1950.  Instead, the year was unreasonably split into two parts
– the 47 days of active duty in the AUS and 28 points earned through
inactive duty and membership points.  Had this year not been erroneously
split, the applicant would have had over 19 years of creditable service and
then he would have been entitled to remain in an active status until he
earned his           20 qualifying years.

15.  Sections 12731 through 12738 of Title 10, U.S. Code, 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.

16.  Section 1176(b)(1) of Title 10, U. S. Code states that, if on the date
prescribed for the involuntary separation (other than for physical
disability or for cause) or whose term of enlistment expires and who is
denied reenlistment (other than for physical disability or for cause) from
an active status of a reserve enlisted member or officer he is entitled to
be credited with at least 18, but less than 20, years of qualifying
service, he may not be discharged, denied reenlistment or transferred from
an active status without his consent before the earlier of the date on
which he is entitled to be credited with 20 years of qualifying service or
the third anniversary of the date on which he would otherwise be discharged
or transferred from an active status.

17.  Army Regulation 140-185 (Training and Retirement Point Credits and
Unit Level Strength Accounting Records) states, in pertinent part, that
before 1 July 1949 Soldiers in an active Reserve status would have a
retirement year from      1 July through 30 June annually.  After 1 July
1949, the retirement year beginning date would be the date of initial entry
or reentry (after a break in service) into a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant's first retirement year was split into two
parts           (17 August 1948 through 30 June 1949 and 1 July 1949
through 16 August 1949) because at the time retirement years ended with the
fiscal year (at that time,      30 June).  His retirement year may have
been split erroneously since the regulation states that Soldiers in an
active Reserve status before 1 July 1949 would have a retirement year from
1 July through 30 June.  The applicant,  however, was not a Reserve Soldier
at the time.  He was an AUS Soldier.

2.  Nevertheless, no harm has been done to the applicant.  Had his first
retirement year been in one part -- from 17 August 1948 through 16 August
1949 -- as counsel contends it should have been, the applicant would have
earned 1 qualifying year.  Even with that retirement year "erroneously"
split into two parts he still earned 1 qualifying year – 10 months and 14
days for the first part and 1 month and 16 days for the second part.

3.  The applicant did not begin to serve in the USAR (for the first time)
until       17 August 1949.  His DARP Form 249 already shows he was
credited with           15 membership points for each year he was in the
USAR except for RYE 28 July 1952 (for which he was only credited with 14
membership points based upon an incomplete RYE and during which he earned
no additional points anyway).

4.  Although orders were issued discharging the applicant from the USAR
upon reaching his 60th birthday (January 1990), it appears the May 1990
discharge orders were the effective orders.  At that time, he had completed
less than        17 years of qualifying service for a non-Regular
retirement.  It appears he was properly discharged (either upon reaching
age 60 in January 1990 or upon reaching his expiration term of service in
May 1990).

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 May 1990; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         17 May 1993.  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

__jrs___  __lf____  __jrm___  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.




            __Joe R. Schroeder____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040008599                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050628                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |136.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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