RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 November 2005
      DOCKET NUMBER:  AR20040008679


      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. Robert J. McGowan             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas D. Howard, Jr.         |     |Chairperson          |
|     |Mr. John Infante                  |     |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 his records be corrected to
show that he earned 20 qualifying years of service toward a nonregular
retirement, and is entitled to retired pay.

2.  The applicant states that he was discharged from the Georgia Army
National Guard (GAARNG) on 8 August 1963, but was not told that he did not
qualify for a nonregular retirement.  He applied for retired pay at age 60
on/about July 1982 and was denied.  He stated he was so discouraged he quit
trying to obtain his retirement.  He feels that he was taken advantage of
because of a lack of formal education.

3.  The applicant provides;

      a.  A copy of his WD AGO Form 53-55 (Enlisted Record and Report of
Separation - Honorable Discharge).

      b.  Copies of two DD Forms 214 (Report of Separation From the Armed
Forces of the United States).

      c.  A copy of his Army National Guard Retirement Points History
Statement showing 19 years, 8 months, and 10 days of creditable service for
retired pay.

      d.  A copy of an ARPC Form 249-3 (Chronological Record of Military
Service) showing 19 years, 8 months of qualifying service for retired pay.

      e.  A copy of a 26 July 2004 letter from the Transition and
Separations Branch, US Army Human Resources Command, St. Louis, Missouri to
the applicant's Representative in Congress stating, "It appears [applicant]
believed that he had attained 20 years of service for retirement based on
general arithmetic.  He may have also received erroneous advice from his
unit, if he received any at all."

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on date 8 August 1963, the date he separated from the Army
National Guard (ARNG).  The application submitted in this case is dated 4
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 18 July 1922 and he enlisted in the Regular
Army on 6 September 1940.  He served on active duty throughout World War II
and was honorably discharged on 20 July 1945 with the rank of Staff
Sergeant.  He was awarded the Bronze Star Medal, the Purple Heart with Oak
Leaf Cluster, the Good Conduct Medal, the American Defense Campaign Medal,
the European-African-Middle Eastern Campaign Medal with Bronze Arrowhead,
the Combat Infantryman Badge, and a Presidential Unit Citation.

4.  The applicant served on active duty twice more, from 21 August 1947 to
23 June 1950, and from 22 August 1950 to 13 August 1953.  He was separated
with the rank of Sergeant First Class and was awarded an Oak Leaf Cluster
to his Bronze Star Medal, a Clasp for his Good Conduct Medal, and the Army
of Occupation Medal with Germany Clasp.  His total creditable active
Federal service was 10 years, 8 months, and 10 days.

5.  The applicant served in the US Army Reserve (USAR) Troop Program Unit
(TPU) from 19 October 1953 to 18 October 1962.  All 9 years were creditable
service for retired pay purposes.

6.  On 19 October 1962, the applicant transferred to the GAARNG on a 3-year
enlistment.  His Army National Guard Retirement Points History Statement
shows he was separated on 8 August 1963 with 38 points (26 inactive duty
points and 12 membership points) and zero creditable service for retired
pay purposes [50 points being required for a qualifying year of creditable
service].

7.  The applicant's Army National Guard Retirement Points History Statement
shows that he accumulated a total of 19 years, 8 months, and 10 days of
creditable service for retired pay purposes.

8.  A copy of the applicant's NGB Form 22 (Report of Separation and Record
of Service) indicates he was honorably "discharged without personal notice
due to absence from the state."  The reason shown is incompatible
occupation. His highest grade held was shown as Master Sergeant (MSG/E-7).
This discharge was apparently an involuntary separation.

9.  A 26 July 2004 letter from the US Army Human Resources Command (HRC),
St. Louis, Missouri to the applicant's Representative in Congress states
that, based on general arithmetic, the applicant may have assumed he had
attained 20 qualifying years for nonregular retirement.  It also states he
may not have received proper advice and counseling by his GAARNG unit if he
received any counseling at all.

10.  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.

11.  Title 10, U. S. Code, section 1176(b)(1) 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 19, years of 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.

12.  Army Regulation 140-185, Training and Retirement Point Credits and
Unit Level Strength Accounting Records, prescribes the types of training
and activities for which retirement points are authorized and the procedure
for recording retirement points.  Appendices A and B provides the guidance
for the maximum/minimum retirement points required for a portion of a year
of qualifying service for retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged from the GAARNG and as a Reserve of the
Army on 8 August 1963 with the highest grade held as MSG/E-7.  At that
time, he had completed 19 years, 8 months, and 10 days of qualifying
service for a nonregular retirement.

2.  The record shows that the applicant had completed 9 months and 19 days
of what would have been his twentieth year of creditable service for
retired pay purposes; however, his GAARNG unit "separated [him] without
personal notice" because he apparently had moved from the State of Georgia.
 Based on the fact that he was totally separated prior to completion of a
full retirement year, his required points would have been based on that for
a partial year.  The 9 months and 19 days equates to 289 days which would
require a minimum of 40 retirement points for the partial year to be
creditable as a qualifying period for retired pay.

3.  It is presumed the applicant did not make a conscious decision to throw
away 19 years, 8 months, and 10 days of creditable service and the
opportunity for retired pay at age 60.  Based upon the applicant's NGB Form
22 and the ARPC Form 249-3, it is also presumed that the applicant's unit
made no effort to counsel him concerning the effects of his apparent
actions in August 1963 to leave the State of Georgia.

4.  The applicant's situation warrants compassion by the Board in
correcting his records to show that he qualified for nonregular retired pay
on 8 August 1963.  The most efficient way to accomplish this would be to
move 3 inactive duty points from his RYE 18 October 1958 to his RYE 8
August 1963.  This will increase his inactive duty points to 29 and with
the 12 membership points he will have total of 41 retirement points, which
will make this a qualifying period of 9 months and
19 days.  His new total years of qualifying service for retired pay will be
20 years, 5 months and 29 days.

5.  After redistribution of the retirement points, a corrected retirement
points statement should be issued to show that he is eligible to apply for
retired pay with entitlement to enroll in the Survivor Benefit Plan.
Therefore, the applicant's records are recommended for correction as stated
below.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 August 1963, the date of his
separation from the ARNG.  As a result, the time for the applicant to file
a request for correction of any error or injustice expired on 17 August
1966.  The applicant did not file within the 3-year statute of limitations,
however, based on the evidence available it is appropriate to waive failure
to timely file.





BOARD VOTE:

__tdh___  __ji____  __cd____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by:

      a.  Redistributing 3 excess inactive duty retirement points from RYE
18 October 1958 to RYE 8 August 1963, which will make this a qualifying
period;

      b.  Showing that he made timely application for nonregular retired pay
with entitlement to enroll in the Survivor Benefit Plan; and

      c.  Paying to him nonregular retired pay, subject to the provisions of
law and the Barring Statute, based upon his highest rank held of E-7.




                                  Thomas D. Howard, Jr.
                            ______________________
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008679                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051103                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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