RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                              22 DEC 2005
      DOCKET NUMBER:         AR20050004053


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ted Kanamine                  |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Jeanette McPherson            |     |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, in an amended application, that the
Mississippi Army National Guard (MSARNG) Orders dated 31 December 1965,
showing that he was released from assignment to the MSARNG due to
“Resignation” be voided and that he be granted non-regular retirement based
on his actual time served.

2.  The applicant states that he never resigned from the MSARNG and all
references to such are in error.  He further requests that he be granted
non-regular retirement at age 60 based on his actual service performed.  He
goes on to state that he was unjustly denied his reemployment rights when
he was released from active duty and was not returned to his MSARNG unit,
which denied him the opportunity to acquire sufficient service for
retirement and has resulted in his being denied benefits and pay.

3.  The applicant provides several statements submitted as an amended
application with a newspaper article and copies of orders from his records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 June 1968.  The application submitted in this case is dated
9 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 limitation 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.  He was born on 18 January 1922 and originally entered the Enlisted
Reserve Corps on 20 October 1942.  He was commissioned as a second
lieutenant and entered active duty on 12 March 1944.  He served in the Army
Air Corps (Air Force) as a B-17 Pilot during World War II and was honorably
discharged on 15 May 1946.

4.  He served in the Air Force Reserve until he was granted a release to
join the MSARNG on 1 July 1956.

5.  He was promoted to the rank of captain on 2 October 1961 and on 15
October 1961, he was ordered to active duty with his unit on 15 October
1961 in support of the “Berlin Crisis.”  He remained on active duty until 9
August 1962, when he was honorably released from active duty at Fort Polk,
Louisiana, and was transferred back to the control of his MSARNG unit.

6.  On 10 August 1962 he was assigned the duties of a civil engineer with
the Headquarters and Headquarters Company, 223rd Engineer Battalion.

7.  On 17 August 1962, the applicant submitted an application for
assignment to the inactive MSARNG for a period not to exceed 1 year, due to
business reasons.  The applicant specifically stated that he understood it
was his responsibility to request assignment back to the active MSARNG
prior to 28 August 1963.  His request was approved and he was transferred
to the inactive MSARNG on 28 August 1962.  There is no evidence in the
available records to show that he ever requested assignment back to the
active MSARNG.

8.  On 31 December 1965, orders were published by the MSARNG Adjutant
General which honorably discharged the applicant from the MSARNG due to
“Resignation” and transferred him to the United States Army Reserve (USAR)
Control Group (Ready Reserve).

9.  On 1 January 1966, he was transferred to the USAR Control Group
(Reinforcement).  On 14 June 1967, he was transferred to the USAR Control
Group (Retired).  A review of his records fails to show the presence of a
20-year letter.

10.  A further review of his records fails to show that the applicant
performed any further duties with any Reserve Component after his initial
request for transfer to the Inactive MSARNG in August 1962.

11.  On 12 November 2004, in response to the applicant’s application for
retired pay at age 60, the Army Reserve Personnel Command, St Louis,
Missouri, informed the applicant that an audit of his records showed that
he had only completed 12 years, 8 months and 11 days of qualifying service
for retired pay purposes and thus was not eligible for Retired Pay at age
60.

12.  Army Regulation 135-180 implements the statutory authority governing
the granting of Retired pay to soldiers of the Reserve Components.  It
states, in pertinent part, that to be eligible for Retired pay, a person
must have attained age 60, have completed a minimum of 20 qualifying years
of service and have served the last 8 years of his or her qualifying
service as a Reserve Component soldier.  Service creditable as a qualifying
year is one in which the Reservist is in an active status and earns a
minimum of 50 qualifying points during the retirement year.

12.  That regulation also provides, in pertinent part, that under section
1331(d) of title 10, United States Code (USC), each Reserve component
soldier who completes the service required to be eligible for Retired pay
at age 60 will be notified in writing within 1 year after he or she has
completed that service in the form of a 20-year letter.  A copy of the
notification will become a part of the Official Military Personnel File
(OMPF).

DISCUSSION AND CONCLUSIONS:

1.  Absent evidence to the contrary, it must be presumed, given the
applicant’s lack of participation after August 1962, that he did resign
from the MSARNG and the orders were published in accordance with the
applicable regulations.

2.  Notwithstanding his discharge from the MSARNG, the applicant also did
not participate in the USAR as well and did not accumulate sufficient
retirement points to qualify for Retired Pay at age 60.

3.  The applicant’s contention that he was unjustly not returned to his
MSARNG unit after his REFRAD has been noted and found to be without merit.
His DD Form 214 and his orders specifically direct his return to his MSARNG
unit upon his REFRAD.  Furthermore, it was at that unit that he submitted
his request to be transferred to the Inactive MSARNG for business reasons.

4.  The applicant’s contention that he was unjustly denied the opportunity
to complete 20 qualifying years of service has been noted and found to be
without merit.  Had the applicant remained active in the Reserve Component
and completed 20 qualifying years of service, he would have been eligible
for Retired Pay on 18 January 1982.  However, he has failed to show through
the evidence submitted with his application or the evidence of record that
he was denied the opportunity to participate in the Reserve Components or
that he even made an attempt to do so.

5.  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.
6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 June 1968; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 13 June 1971.  However, 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

____TK__  ____RD _  ___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.




            _____Ted Kanamine_________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050004053                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051222                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19620910                                |
|DISCHARGE AUTHORITY     |AR 135-173, SPN 743, Para 49c(2). . . . |
|                        |.                                       |
|DISCHARGE REASON        |REFRAD                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |342/USAR 60 RET                         |
|1.136.0400              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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