RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 December 2005
      DOCKET NUMBER:  AR20040011521


      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. John T. Meixell               |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Richard G. Sayre              |     |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 an increase from 2325 to 2550 of the National
Guard Retirement Point Credits upon which his retired pay is based.

2.  The applicant states his retired pay was calculated based on 2325
points instead of the correct 2550 points.  This resulted in an
underpayment of his retired pay.

3.  The applicant provides:

      a.  A copy of an email he sent to the "myPay" website
(mypay.dfas.mil) seeking a recalculation of his retirement points.  The
website responded that his pay account was handled elsewhere (at Defense
Finance and Accounting Service – Cleveland (DFAS-CL)).

      b.  A copy of Texas Army National Guard (TXARNG) Form 63 (Retirement
Points History Statement), dated 10 August 1992, showing that he earned a
grand total of 2550 retirement points.

      c.  A copy of a DFAS-CL Summary of Retired Pay Account, dated 18 July
1995, showing his retired pay is based upon 2325 points.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 24 June 1995, the date of his retirement  The application
submitted in this case is dated 13 December 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 served in the TXARNG from 24 February 1953 to 1 March
1973 when he was honorably discharged and transferred to the US Army
Reserve (USAR) Control Group (Standby).  He was transferred to the USAR
Retired Reserve on 24 June 1995 and became eligible for retired pay on that
date.
4.  The DFAS-CL Center calculated the applicant's retired pay based on 2325
retirement points.  It is unknown which documents the DFAS-CL used in
arriving at the 2325 point total.

5.  The TXARNG website (www.agd.state.tx.us), in a question and answer
format under "National Guard Retirement Benefits," provides Army National
Guard members must have 20 “qualifying” years of service to be eligible for
retired pay at age 60.  A “qualifying year” is one in which the member
earns a minimum of 50 retirement points.  The website further states,
"Soldiers may accumulate a total of 365 points per year (366 in a leap
year) from inactive and active duty service (one point for each day of
duty).  However, for retired pay calculation purposes, soldiers can’t use
more than 60 inactive duty [IDT] points per year for Reserve years ending
before 23 September 1996.  Points are generally credited for: (1) active
duty and active duty for training - one point for each day; (2) membership
in an active status of a reserve component - 15 points for each year; (3)
authorized drills - one point per unit training assembly (UTA); and
(4) satisfactory completion of authorized correspondence courses – 1 point
per 3 credit hours."  Items (2) through (4) are IDT retirement points and
subject to the 60 point annual limit.

6.  When applying the "60 point rule" to the applicant's records, three
separate documents were reviewed to determine his retirement points.

      a.  The 10 August 1992 TXARNG Form 63 reveals that the applicant had
2293 retirement points, not 2550 as he contends.  When all IDT points above
60 are included, the total rises to 2550.

      b.  An NGB Form 23 (Retirement Credits Record) reveals the applicant
earned 2200 retirement points through 1 March 1973.

      c.  A Retirement Points Accounting System (RPAS) Summary Points
Inquiry, dated 8 March 2005, shows that the applicant had 1805 retirement
points from 24 February 1953 through 23 February 1968.  When the years 24
February 1968 through 1 March 1973 are added from the two other sources,
the total rises to 2215.

7.  In the processing of this case, an advisory opinion was sought from the
Transition and Separations Branch, US Army Human Resources Command (HRC),
St. Louis, Missouri.  The opinion was not accomplished because "there
appears to be discrepancies on numerous documents as to the number of
retirement points [applicant] is entitled to; the amount he is currently
being paid on appears to be the highest number."
DISCUSSION AND CONCLUSIONS:

1.  The applicant's retirement points total cannot be determined by the
ABCMR with any degree of specificity; three different documents yielded
different point totals when they were examined.

2.  The applicant's assertion that the 10 August 1992 TXARNG Form 63 shows
he earned 2550 retirement points is not correct.  That document allows more
than the maximum 60 IDT points permitted for purposes of retired pay
calculation.  When only 60 IDT points are allowed, the retirement points
total is only 2293.

3.  A review of the three available retirement points documents in the
applicant's file reveals totals of 2200, 2215, and 2293.  The applicant's
retirement pay is based on 2325 retirement points, a higher number than can
be determined by examining his records.

4.  The applicant has not shown that he is entitled to a higher retirement
points total than he has received.  Since he has not shown that he has been
disadvantaged by an error in the calculation of his retirement points,
there is no basis upon which to correct the record.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 June 1995; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 23 June 1998.  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

__jtm___  __ml____  __rgs___  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 T. Meixell
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011521                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051201                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |135.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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