RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 NOVEMBER 2005
      DOCKET NUMBER:  AR20050002090


      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. Lester Echols                 |     |Chairperson          |
|     |Mr. John Denning                  |     |Member               |
|     |Ms. Jeanette 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:

1.  The applicant requests, in effect, that his records be corrected to
show that he completed 20 years of qualifying service for retirement
purposes in the United States Army Reserve.

2.  The applicant states that he was discharged with 19 years of service
for being overweight.  He states that it was unjust and he could have been
placed on medical leave or behind a desk.  He states that he was told by a
high ranking officer that he could have been kept in the Army Reserve for
one more year to get to 20 years.

3.  The applicant provides a copy of a July 1984 letter stating that he
would be barred from reenlisting if he failed to meet the Army’s weight
standards.  He also submits a copy of his 1977 honorable discharge
certificate from the Regular Army.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 4 December 1984.  The application submitted in this case
is dated
25 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.  Records available to the Board indicate the applicant initially entered
active duty in February 1966 and served continuously until he was honorably
discharged on 20 January 1977, in pay grade E-5.  At the time of his 1977
discharge the applicant had completed 10 years, 10 months, 26 days of
service.





4.  According to documents contained in the applicant’s file, he enlisted
in the United States Army Reserve, for a period of 4 years, on 6 October
1979.  He extended his 4 year enlistment for an additional year on 21
August 1983 thereby establishing his scheduled separation date as October
1984.

5.  The July 1984 letter, provided by the applicant, indicates his June
1984 separation from the service was rescinded because unit weight control
records were inadequate to accomplish the separation action at the time.
The letter noted, however, that the applicant would continue to be barred
from reenlisting unless he met all reenlistment criteria, including weight
standards.

6.  Although the applicant’s scheduled separation date was in October 1984,
orders were not issued until December 1984 discharging the applicant from
the United States Army Reserve.  There is no indication he was permitted to
reenlist following the expiration of his United States Army Reserve
enlistment contract.  At the time of his discharge from the United States
Army Reserve he had been a member of that component for 4 years, plus an
additional 2 months if you include the period between October 1984 when his
contract expired and December 1984 when the discharge orders were actually
issued.

7.  The applicant’s retirement point worksheet, however, notes that for the
retirement year ending in 1984 he failed to accumulate the required 50
points to have that year counted as a qualifying year for retirement
purposes.  His previous 3 years as a member of the United States Army
Reserve, although not reflected on his retirement point work sheet, are
presumed to have been qualifying years.

8.  Between the applicant’s active Federal service, and his qualifying
years as a member of the United States Army Reserve, he would have
accumulated less than 14 years of qualifying service for retirement
purposes (10 years, 10 months of active Federal service and 3 years of
qualifying service in the United States Army Reserve).

9.  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.

10.  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.  Although the applicant maintains that he was discharged with 19 years
of military service for being overweight, the evidence available to the
Board indicates he was discharged, with less than 14 years of qualifying
service for retirement purposes, because he was not permitted to reenlist
when he failed to meet reenlistment eligibility which included weight
standards.

2.  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.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 December 1984; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
3 December 1987.  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

_LE  ____  __JD  ___  ___JM __  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.




                                  ______Lester Echols________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002090                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051117                                |
|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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