RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           17 November 2005
      DOCKET NUMBER:  AR20050002199


      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. Lisa O. Guion                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. John E. Denning               |     |Member               |
|     |Ms. Jeanette R. 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 he completed 20 qualifying years of service in order to qualify for
non-regular retired pay.

2.  The applicant states, in effect, that he served in the Army from 1977
through 1997, and that he completed the required 20 years of service
necessary to receive non-regular retired pay.

3.  The applicant provides the following documents in support of his
application:  Personnel Qualification Records (DA Forms 2A and 2-1); 12
April 1977, 9 March 1979, and 21 March 1991 Enlistment or Reenlistment
Agreements (DD Forms 4); Oath of Extension of Enlistment or Reenlistment
(DA Form 4836), dated 3 March 1991; 8 March 1979 and 20 March 1990
Separation Documents (DD Forms 214); and National Guard Bureau Report of
Separation and Record (NGB Form 22).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that
occurred on 8 April 1997.  The application submitted in this case is dated
14 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 military records show the applicant enlisted in the United States
Army Reserve (USAR) Delayed Entry Program (DEP) on 12 April 1977, and
remained in that status until 7 June 1977, when he was discharged for the
purpose of entering active duty.

4.  On 8 June 1977, the applicant enlisted in the Regular Army and entered
active duty.  He was trained in, awarded and served in military
occupational specialty (MOS) 11C (Indirect Fire Infantryman).  He continued
to serve in the Regular Army, USAR, and the Army National Guard (ARNG)
until he was honorably discharged from the USAR on 8 April 1997.

5.  The applicant’s Official Military Personnel File (OMPF) contains a copy
of a Retirement Points Summary (AHRC Form 606-E), dated 14 March 2005.
This document confirms he completed 17 qualifying years for the purpose of
retirement.

6.  In connection with the processing of this case, an advisory opinion was
obtained from officials of the Chief, Veterans Support Branch, Army Human
Resources Command (AHRC), St. Louis, Missouri.  The AHRC official indicates
that the applicant was a member of the USAR, RA, or ARNG continuously from
12 April 1977 until being discharged on 8 April 1997; thereby completing
19 years, 11 months and 27 days total service career time.

7.  The official indicates, in effect, that a RC Soldier must complete 20
qualifying years of service in order to qualify for non-regular retired pay
at age 60.  He also confirms that the AHRC Form 606-E on file for the
applicant shows the following three periods that were not creditable
towards the 20 year requirement:  12 April 1994 to 11 April 1995, 12 April
1995 to 11 April 1996 and partial year 12 April 1996 to 8 April 1997.

8.  On 5 May 2005, the applicant was forwarded a copy of the AHRC advisory
opinion in order to have the opportunity to review its contents.  To date,
no rebuttal or comments have been received from the applicant.

9.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-regular
Service) implements statutory authorities governing the granting of
"retired pay" to Soldiers and former Reserve Component (RC) Soldiers.
Chapter 2 contains the eligibility criteria for retired pay.  It states, in
pertinent part, that to be eligible for retired pay, an individual must
have attained age 60, completed a minimum of 20 years of qualifying service
and served the last 8 years of his or her qualifying service as a RC
Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for retired pay and the supporting documents
provided were carefully considered.  However, by law, in order to be
eligible for non-regular retired pay at age 60 a member must complete 20
years of qualifying service and the last eight years of qualifying service
must have been completed as a member of a RC.  The evidence of record
contains an AHRC Form 606-E that confirms the applicant had three periods
that were not qualifying years creditable for non-regular retirement.
Therefore, there is an insufficient evidentiary basis to support granting
the requested relief.

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

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 April 1997. Therefore, the time for
him to file a request for correction of any error or injustice expired on 7
April 2000.  He failed to file within the 3-year statute of limitations and
the applicant 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___  __JED __  __JRM   _  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                 |AR20050002199                           |
|SUFFIX                  |                                        |
|RECON                   |NA                                      |
|DATE BOARDED            |2005/11/17                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1997/04/08                              |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |136.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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