RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           18 January 2006
      DOCKET NUMBER:  AR20050005953


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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, military retirement.

2.  The applicant states, in effect, he is eligible for retirement based on
his active duty service in the Regular Army.  He further states he never
received a retirement briefing.

3.  The applicant provides the following documents in support of his
application:  Human Resources Command (HRC), St. Louis Letter, dated 28
March 2005; Retirement Points Summary (ARPC Form 606-E, dated 9 January
2001; and Disabled American Veterans (DAV) Letter, dated 7 September 2005.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 28 April 1983.  The application submitted in this case is
dated 7 April 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 record shows that on 28 July 1980, the applicant was
honorably discharged under the provisions of chapter 2, Army Regulation
635-200, by reason of expiration of his term of service (ETS).  The
separation document (DD Form 214) he was issued at this time confirms he
completed a total of 19 years, 6 months and 13 days of active military
service and was assigned a Separation Program Designator (SPD) code of JBK
based on the authority and reason for his discharge.  It also shows he held
the rank of sergeant first class (SFC) at the time of his discharge and was
assigned a reentry (RE) code of RE-3A.

4.  The applicant’s Military Personnel Records Jacket (MPRJ) contains no
documents related to his active duty separation processing.

5.  On 18 January 1982, the applicant enlisted in the United States Army
Reserve (USAR).

6.  The applicant’s record contains a packet, dated in September 1982,
which indicates a determination on the validity of the applicant’s
enlistment in the USAR based on the discovery of derogatory information
revealed during the Entrance National Agency Check (ENTNAC).  This packet
included a Record of Court-Martial showing the applicant was convicted of
stealing a radio by a summary court-martial in November 1962.  It also
contained a Criminal Investigation Division (CID) investigation completed
on 2 November 1977, which revealed the applicant stole $1,415.50 from his
unit’s Mess Hall and $290.00 of another Soldier’s money that was stored in
the Mess Hall safe between August and September 1977.  There is no record
of the final disciplinary action taken on this matter in the packet.  There
was also a report regarding the applicant’s failure to respond to a bench
warrant that was issued based on his failure to obey a traffic control
device in 1976.

7.  An ARPC Form 600-E, dated 9 January 2001, on file in the applicant’s
MPRJ shows that during his USAR service, the applicant was awarded 51
points for the period 18 January 1982 through 17 January 1983, during which
he completed
14 days of active duty service.  It further shows that he was credited with
a total of 4 points for the period 18 January 1983 through 28 April 1983,
and he completed no active duty service during this period.

8.  On 28 April 1983, the applicant was honorably discharged from the USAR.


9.  The applicant provides a letter from the Director, Personnel Actions
and Services, HRC, St. Louis, dated 22 May 2005, which was prepared in
response to a Congressional Inquiry made on behalf of the applicant.  It
indicates that a review of documents provided with the inquiry resulted in
a determination that the applicant was entitled to a retirement based on
his active duty and Regular Army service; however, HRC, St. Louis was not
able to retire active duty Soldiers.

10.  The HRC letter also advised that the applicant should submit an
application to this Board requesting retirement upon his completion of
twenty qualifying years of Active Federal Service (AFS), which, based on
documents prepared by HRC, St. Louis, appeared to be on 29 April 1983.
This letter does not specifically identify the documents used in making
this determination, nor does it refer to the law or regulation under which
they determined the applicant’s active duty retirement eligibility was
based.

11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities
(regulatory or directive), reasons for separating Soldiers from active
duty, and the SPD codes to be entered on the DD Form 214.  It states, in
pertinent part, that the SPD code of JBK is the appropriate code to assign
to Soldiers separated by reason of completion of required active service.

12.  Title 10 of the United States Code provides the legal authority for
the retirement of enlisted members who have at least 20, but less than 30
years of active military service.  It states, in pertinent part, that under
regulations prescribed by the Secretary of the Army, an enlisted member of
the Army who has at least 20, but less than 30, years of service may, upon
his./her request, be retired.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) sets forth the policies, standards, and procedures for the
separation of enlisted personnel.  Chapter 12 contains the policies on
retirement.  Paragraph 12-4 contains guidance on the twenty-year retirement
law.  It states, in pertinent part, that a Soldier who has completed 20,
but less than 30 years of Active Federal Service (AFS) in the United States
Armed Forces may be retired at his or her request.

14.  Paragraph 12-7 of the enlisted separation regulation contains guidance
on the eligibility for twenty-year retirements.  It states, in pertinent
part, that Soldiers who have completed 20 but less than 30 years of AFS and
who have completed all required service obligations are eligible, but not
entitled, to retire upon request.  Soldiers who have completed 19 or more
years of AFS may apply for retirement.  The request must be made within 12
months of the requested retirement date.  It further stipulates they must
complete at least 20 years of AFS by the requested retirement date.

15.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular
Service) implements statutory authorities governing the granting of
"retired pay" to soldiers and former Reserve components soldiers.  Chapter
2 provides eligibility criteria and state, in pertinent part, that in order
to qualify for nonregular retirement, a member 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.  Paragraph 2-8 defines qualifying
service and states, in pertinent part, that a RC soldier must earn a
minimum of 50 retirement points each retirement year to have that year
credited as qualifying service.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to an active duty twenty-
year retirement and the supporting documents he provided were carefully
considered. However, by law and regulation, a member who has completed at
least 20, but less than 30 years of service may be retired under
regulations established by the Secretary of the Army upon his/her request
only if they have completed at least 20 years of AFS on the date of their
retirement.  Soldiers who have completed
19 or more years of AFS may apply for retirement within 12 months of the
requested retirement date.

2.  There are no documents on file in the applicant’s record pertaining to
the facts and circumstances surrounding his 28 July 1980 separation from
active duty and discharge from the Regular Army.  It is also void of any
indication that he requested to be retained on active duty to complete the
20 years of AFS necessary to qualify for retirement, or that he ever
requested retirement after obtaining 19 years of AFS.  Therefore, given the
law and regulation stipulate that a member must complete at least 20 years
of AFS in order to qualify for retirement, and because 20 year retirement
is not an entitlement and must be requested, there is an insufficient
evidentiary basis to show any error or injustice related to the applicant’s
separation from active duty.

3.  The evidence of record does contain a properly constituted DD Form 214
that confirms the applicant was honorably separated from active duty and
discharged from the Regular Army on 28 July 1980, by reason of ETS.  It
further shows that at the time, he had completed a total of 19 years, 6
months and 13 days of AFS.  The applicant authenticated this document with
his signature on the date of his separation.  In effect, his signature is
his verification that the information contained on the separation document,
to include the authority and reason for his discharge and the total AFS
completed, was correct at the time the DD Form 214 was prepared and issued.
 Absent evidence to the contrary, this document establishes a presumption
of Government regularity in the applicant’s separation processing.

4.  The record is also void of any indication that the applicant requested
retirement prior to his separation from active duty, or that he attempted
to be retained on active duty in the Regular Army in order to complete the
20 years of AFS required to qualify for an active duty retirement.
Therefore, given the law and regulation regarding 20 year retirement
stipulate that retirement is not an entitlement and must be requested by
the Soldier and approved by the Secretary of Army, or his representative,
the applicant was clearly not entitled to retirement at the time of his
separation from active duty.
6.  Notwithstanding the comments made by the Director, Personnel Actions
and Services, HRC, St. Louis, in her 22 May 2005 letter, which appears to
indicate the applicant obtained eligibility for an active duty retirement
on 23 April 1983, there does not appear to be sufficient evidence to
support this conclusion.  The record does show the applicant enlisted in
the USAR on 19 January 1982 and served in that status until being honorably
discharged on 28 April 1983.

7.  The ARPC Form 606-E provided shows that during this period of USAR
service, the applicant earned a total of 51 points and completed 14 days of
active duty service during the period 18 January 1982 through 17 January
1983; and earned 4 points during the period 18 January through 28 April
1983.  This confirms he completed 1 year of qualifying service, which when
combined with his AFS would be sufficient to satisfy the total qualifying
service requirement for a non-regular Reserve retirement at age 60.
However, the fact the applicant did not complete the last eight qualifying
years in a Reserve Component, as is required by law, also renders him
ineligible for non-regular retired pay at age 60.

8.  If there were sufficient active duty records available to confirm the
applicant had been denied the opportunity to extend his active duty
enlistment to complete the 20 years of AFS necessary to qualify for an
active duty retirement at the time of his discharge from the Regular Army,
there might possibly be an equity basis to consider granting the requested
relief.  However, given the incomplete records available, and the evidence
of misconduct revealed during the ENTNAC check completed on the applicant
during his USAR enlistment processing, it would not be appropriate to grant
the requested relief in this case at this late date, some 15 years after
the fact.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 April 1983.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 27 April 1986.  He failed to 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

___SLP     __CAD __  __KSJ __  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.




            ____Shirley L. Powell ____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050005953                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/01/18                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1983/04/28                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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