RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 October 2005
      DOCKET NUMBER:  AR20050003950


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Jeannette 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 that his records be corrected to show he
qualified for a non-regular retirement.

2.  The applicant states his 19 years in the Army National Guard (ARNG) and
his 4 and 1/2 years on active duty (and 3 years in Indo-China) should
count.

3.  The applicant provides a letter, dated 25 February 2005, from the U. S.
Army Human Resources Command – St. Louis (USAHRC – STL) to the applicant's
Senator and a letter, dated 7 March 2005, to him from his Senator.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 July 1994, the date he turned age 60.  The application
submitted in this case is dated 7 March 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 enlisted in the ARNG on 11 November 1948.  He had
     16 qualifying years of service in the ARNG and the U. S. Army Reserve
when he enlisted in the Regular Army on 21 April 1969.  He served two tours
in Vietnam for a total of about 35 months.

4.  On 3 July 1973, a local bar to reenlistment was imposed on the
applicant.  On 31 August 1973, he was honorably discharged upon his
expiration term of service after completing 4 years, 4 months, and 8 days
of creditable active service that period.

5.  By letter dated 25 February 2005, the USAHRC – STL informed the
applicant's Senator they had previously informed him the law requires (in
his case) that the last eight years of qualifying service be in the Reserve
Component in order to obtain a non-regular retirement.  They also had
stated he could have obtained retirement from the Active Army.

6.  At the time, sections 1331 through 1337 of Title 10, U.S. Code,
provided that a non-regular service member was entitled, upon application,
to retired pay if the person was at least 60 years of age and had performed
at least 20 years of qualifying service, the last eight years of qualifying
service while a member of a reserve component.

7.  Section 3914 of Title 10, U. S. Code, provides that an enlisted member
of the Army who has at least 20 years of active Federal service may retire
for length of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions are noted.  It is understood he completed
more than 20 years of qualifying service at the time he separated from
active duty in 1973.  It is also understood, since he had a bar to
reenlistment, he could not have retired from active duty.

2.  Unfortunately, his last years of qualifying service were performed
while in the Regular Army.  At the time, the law required the last 8 years
of qualifying service to have been performed in a reserve component.

3.  Regrettably, the applicant does not meet the statutory criteria for a
non-regular retirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 July 1994; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         14 July 1997.  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___  __jbg___  __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.




                                  __John T. Meixell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003950                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051020                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |136.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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