RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 OCTOBER 2005
      DOCKET NUMBER:  AR20040010876


      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             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Ted Kanamine                  |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Ms. Carol Kornhoff                |     |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 had sufficient qualifying years of service for entitlement to
retired pay at age 60.

2.  The applicant states, in effect, that he was in the Army for 24 years
but is only being credited with 18 years of qualifying service.  He states
that he did not receive “credit points” between 1958 and 1963 because of
the fire at the National Personnel Records Center which partially destroyed
his records.

3.  He states that he was in the National Guard for 6 years between 1955
and 1961 and is “looking for retirement from 1998 to present.”

4.  The applicant states that pressing personal matters, related to the
death of his daughter on 25 August 1998, a homicide victim, and the
subsequent trial and adoption of her two children, precluded his looking
into his situation until after the children’s adoption was final in 2001.
He states that he would be satisfied with “just 2 more years to make the
20.”

5.  The applicant provides extracts from his partially destroyed service
record, which included several orders, a copy of his 1958 National Guard
Bureau Form 22 (Report of Separation and Record of Service in the Army
National Guard), and portions of his Department of the Army Form 24
(Service Record).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 26 May 1998.  The application submitted in this case is
dated
26 November 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.  Documents available to the Board indicate that the applicant enlisted
in the Army National Guard on 18 July 1955 and served until 20 January 1958
when he was transferred to the Inactive National Guard.  He acquired
sufficient retirement points to have his RYE (Retirement Year Ending) on 17
July 1956 and 17 July 1957 counted as qualifying years for retirement pay
at age 60.

4.  Orders included with documents provided by the applicant from his
partially burned service record indicate that the applicant was reassigned
from the Inactive National Guard to the United States Army Reserve Control
Group (Reinforcement) on 18 July 1958.  An entry on his service record
indicates he was transferred to the United States Army Reserve to complete
his remaining statutory “reserve obligation of 5 years.”

5.  On 31 July 1963, orders provided by the applicant indicate that he was
honorably discharged from the United States Army Reserve Control Group.
The reason for the discharge is shown as “ETS” (expiration term of
service).

6.  There is no indication that the applicant acquired any more qualifying
years of service for retirement purposes between his RYE ending in July
1957 and his honorable discharge in July 1963.

7.  On 25 June 1982, after nearly a 19-year break in service, the applicant
enlisted in the United States Army Reserve for a period of 1 year.  He was
permitted to enlist in pay grade E-4 based on his civilian acquired skills
as an administrator.  A document, utilized to support his petition to
enlist in pay grade E-4, incorrectly noted that he had 8 years in the “Army
Guard.”

8.  There is no indication that the applicant earned additional retirement
points between 1958 when he was transferred to the Inactive National Guard
and subsequently to the United States Army Reserve Control Group and 1963
when he was honorably discharged upon completion of his statutory service
obligation, although it is likely that he did continue to accumulate the 15
points credited each RYE for membership.  The applicant’s retirement points
summary, however, indicates no points were accumulated between 1958 and
1982.

9.  On 11 June 1983 the applicant reenlisted for 3 years, on 2 June 1986 he
reenlisted for 6 years, and on 27 May 1992 he executed his last
reenlistment contract, for a period of 6 years, thereby establishing his
ETS (expiration of term of service) date as 26 May 1998.



10.  On 26 May 1998 the applicant was honorably discharged from the United
States Army Reserve as a result of his ETS.  He was serving in pay grade E-
7 at the time.  Between 1982 and 1998 he accumulated 16 additional years of
qualifying service for retirement purposes.

11.  Army Regulation 140-10 states that Soldiers not sooner removed for
another reason will be removed when they reach maximum age.  The maximum
age for enlisted Soldiers is age 60.  It notes that Removal date will be
the last day of the month in which they reach maximum age.  The applicant
reached his 60th birthday in July 1998.

12.  Army Regulation 135-180 implements statutory authorities (Title 10,
United States Code, sections 12731 through 12738) governing the granting of
retired pay to Soldiers and former Reserve Component Soldiers.  Paragraph 2-
1 of that regulation states, in pertinent part, that to be eligible for
retired pay, an individual need not have a military status at the time of
application, but must have attained age 60, completed a minimum of 20 years
of qualifying (emphasis added) service, and served the last 8 years of his
qualifying service as a Reserve component soldier.

13.  Paragraph 2-8 of the aforementioned regulation describes qualifying
service, as pertains to this case, as service performed as an enlisted
person in an active status in a Reserve component or in active Federal
service.  After 30 June 1949, a reservist must earn a minimum of 50
retirement points each retirement year to have that year credited as
qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant may have been affiliated with the United States
Army in various components for more than 20 years, unfortunately, evidence
available to the Board indicates that at most the applicant would have
accumulated no more than 18 years of qualifying service for retirement
purposes.  As such, he would not have had sufficient qualifying service to
meet eligibility requirements for retired pay at age 60.

2.  The applicant’s available records, including the copies of the
partially destroyed records he submitted, do confirm that he was granted
qualifying years of service in 1956 and 1957.  However, between 1958 and
1982, in spite of being affiliated with the Inactive National Guard and
subsequently with the United States Army Reserve Control Group between 1958
and 1963, that same summary indicates he did not accumulate any points.

3.  Notwithstanding the absence of points on his retirement points summary
document for the years 1958 through 1963, when he was in the Inactive
National Guard and the United States Reserve Control Group, it is likely
that he only accumulated membership points during those years and not the
50 points required to be earned during each of those years in order for the
years to count as qualifying years.  The absence of those membership points
between 1958 and 1963, in view of the fact that there is no evidence that
he met the point requirement for a qualifying year, creates no injustice.
Had the membership points been properly accounted for, it would still have
been insufficient for those same years to be counted as qualifying years.

4.  It appears that the applicant was discharged at his ETS in May 1998
knowing that he would be automatically removed upon reaching age 60 in July
1998.  While his daughter’s death in August 1998 and the ensuing legal
situation would certainly have been traumatic, it does not appear to have
impacted the basis for his discharge in May 1998.

5.  While the applicant may have believed at the time of his 1998 discharge
that his nearly 24 years of military service was sufficient for retirement
purposes, the fact remains, based on his years of service, senior NCO
grade, and experience, that he should have been well aware of the
requirements associated with “qualifying years” of service for retirement.
The applicant has provided no evidence, which would serve as a basis to
credit him with the nearly 2 additional years he requires for retirement
purposes.  Unfortunately, based on the evidence provided to the Board, it
appears that the applicant’s nearly 19 year break in service between 1963
and 1982, and not the absence of retirement points on his retirement points
summary document for the years 1958 to 1963, precluded him from attaining
the required number of qualifying years of service for retirement purposes
prior to reaching age 60.

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

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 May 1998; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
25 May 2001.  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

__TD ___  __PM ___  ___CK __  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.




                                  ____    Ted Kanamine_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010876                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051013                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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