RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 June 2005
      DOCKET NUMBER:  AR20050001558


      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. Alan Chin                     |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Kenneth W. Lapin              |     |Member               |
|     |Ms. Delia R. Trimble              |     |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 ARPC Form 249-2-E
(Chronological Statement of Retirement Points) be corrected or adjusted to
show completion of 20 years of qualifying service to allow receipt of
retired pay.

2.  The applicant states that his service reflected for Retirement Year
Ending (RYE) 30 August 1965 should be creditable as a full year for the
purpose of receiving retired pay at age 60.  He states that early in his
reserve career he questioned the apparent incongruity of the entry for RYE
30 August 1965.  He contends that his ARPC Form 249-2-E reflects qualifying
service of 8 months and 4 days and that the 247 points reflected clearly
exceeds the 50 points required to qualify as a “good” retirement year for
retired pay purposes.  He claims that at that time he was informed that the
service was credited as a full year for retired pay purposes.


3.  The applicant provides a copy of his ARPC Form 249-2-E (Chronological
Statement of Retirement Points), dated 7 February 2003; U.S. Army Reserve
Personnel Center (USARPC) memorandum, Subject: Retention in an Active
Status of the USAR, dated 27 October 1994; and USARPC letter, reference
reply to his DD Form 108, Application for Retired Pay Benefits, dated 29
December 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 August 1965, the date he claims he should have been
credited with a full retirement year for the purpose of receiving retired
pay at age 60.  The application submitted in this case is dated 19 January
2005.

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’s military records show that he enlisted in the Regular
Army on 27 December 1963 for a period of 3 years.  On 30 August 1965 he was
discharged to accept appointment as a Reserve commissioned officer in the
rank of second lieutenant (2LT/O-1).  He was promoted through the ranks to
lieutenant colonel (LTC/O-5).

4.  The applicant provided a copy of a memorandum from the Chief,
Transition Branch, Soldier Support Division, USARPC, dated 27 October 1994,
Subject:  Retention in an Active Status of the USAR.  The letter states,
“As of 30 August 1993, you are credited with 18 years of qualifying Federal
service for retired pay benefits at age 60.”  The letter also stated that
because he was credited with at least 18 years of qualifying Federal
service for retired pay he was eligible to extend his mandatory retirement
date (MRD) to allow time to reach the 20 years of qualifying service
necessary to receive retired pay benefits.

5.  The applicant accepted the extension of his MRD and over the period of
his extension he earned 2 additional years towards the 20 years minimum
requirement for receipt of retired pay.  He transferred to the Retired
Reserve on or about 12 February 1997.

6.  The applicant’s ARPC Form 249-2-E, dated 7 February 2003, shows that he
had completed 19 years, 8 months, and 4 days of qualifying years for
retirement. There is no record to show that he was issued, nor was he
eligible to have issued, a notification of qualification for retired pay at
age 60 (20-Year Letter).

7.  In the Spring of 2003 the applicant submitted his formal application to
receive retired pay at age 60.  The retirement application is not in the
available records.

8.  On 29 December 2004, the Chief, Transition and Separation Branch,
USARPC sent a letter to the applicant in reply to his application for
retired pay.  This letter states, in part, that an audit of his military
records show that he completed 19 years, 8 months, and 4 days of qualifying
service for retirement.  Accordingly, he is ineligible to receive retired
pay.

9.  Paragraph 7-12 of Army Regulation 140-10 (Assignments, Attachments,
Details, and Transfers), provides guidance on exceptions for removal of
Reserve Soldiers from an active status.  It states, in pertinent part, that
officers having
18 or 19 years of qualifying Federal service for retired pay will not be
removed without their consent.  Officers who meet this criteria on the date
removal is required will be retained to complete 20 years.  Retention is
authorized until the date on which 20 years of qualifying Federal service
for retired pay is completed, or three years from required removal date
(applies to officers having at least
18 but less than 19 years of qualifying service), or two years from
required removal date (applies to officers having at least 19 years but
less that 20 years of qualifying service).

10.  Paragraph 1-4 of Army Regulation 140-185 (Training and Retirement
Point Credits and Unit level Strength Accounting Records), provides
guidance for establishing or changing the retirement year (RY) for U.S.
Army Reserve Soldiers.  It states, in pertinent part, that after 1 July
1949, the retirement year beginning date will be the date of transfer to
the Reserve Component upon release from active duty.  Example: If a Soldier
initially enlisted in the Regular Army on 1 April 1970 and was transferred
to an active Reserve Component on 31 July 1973, the Soldier’s RY would be
31 July-30 July.

11.  Sections 12731 through 12739 of Title 10, US Code, authorize retired
pay for Reserve Component (RC) 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.  After 1 July 1949, a qualifying year
is one in which a Reserve Soldier earned 50 retirement points or more
[emphasis added].  The last 6 years must be served as a RC Soldier.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been credited with a full
retirement year for RYE 30 August 1965 for the purpose of receiving retired
pay at age 60.

2.  Based on the USARPAC memorandum that the applicant received, dated
27 October 1994, he was led to believe that he had acquired 18 years of
qualifying Federal service and only needed to complete two more years for
the purpose of meeting the eligibility requirements to receive retired pay
at age 60. He acquired the additional 2 years within the prescribed
timeframe.  However, based on a review of his ARPC Form 249-2-E, he
actually only had 17 years,
8 months, and 4 days of qualifying years for retirement prior to completion
of the additional 2 years.  This resulted in him only having 19 years, 8
months, and
4 days of qualifying service for retired pay.

3.  It is also apparent that the applicant did not understand the
difference between accrual of creditable time as a Regular Army Soldier
versus a Reserve Soldier.  The applicant was a Regular Army Soldier during
RY 27 December 1964 through 30 August 1965.  As a Regular Army Soldier on
active duty he was correctly awarded one creditable retirement point for
each calendar day he served during RYE 30 August 1965.  This day for day
count equals 247 days or
8 months and 4 days of qualifying service for that partial year.  However,
for a Reserve Soldier, the requirement is for accrual of a minimum of 50
points per retirement year, a complete 12 month period, in order for that
year to qualify as a creditable or “good” year for retirement purposes.

4.  The evidence failed to show that he earned 50 or more points during his
RYE of 30 August 1986.  He has sufficient excess retirement points that can
be moved to his RYE of 30 August 1986 to show that year as qualifying for
retirement.  The distribution would not involve awarding additional
retirement points or entitlement to any additional pay.

5.  After redistribution of sufficient excess retirement points to his RYE
of
30 August 1986, a corrected ARPC Form 249-2-E should be issued to show that
he completed 20 years of qualifying service for retired pay with
entitlement to enroll in the Survivor Benefit Plan (SBP).



BOARD VOTE:

__RJW___  __KWL_  __DRT__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 redistributing excess
retirement points from his prior qualifying RYEs to his RYE of 30 August
1986 and showing this RYE as qualifying for retirement.

2.  That upon completion of the administrative action required by Paragraph
1, above, that the Army Human Resources Command–St. Louis recalculate the
retirement points of the individual concerned, issue him a corrected
Chronological Statement of Retirement Points, and certifying eligibility
for non-regular retired benefits at age 60 with entitlement to enroll in
SBP.




                            __/s/ Raymond J. Wagner_
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001558                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050616                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |MR. SCHNEIDER                           |
|ISSUES         1.       |135.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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