RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 January 2006
      DOCKET NUMBER:  AR20050007092


      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:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Qawly A. Sabree               |     |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 he be issued an Eligibility for

Non-Regular Retirement Letter and that he be declared eligible to receive
non-regular retired pay at age 60.

2.  The applicant states, in effect, that he had completed over 16 years of
service, his military occupational specialty (MOS) was discontinued, there
was no unit for him to serve in within a 50 mile radius.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 16 September 1997.  The application submitted in this case
is dated 4 May 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 military record shows he initially entered the United
States Army Reserve (USAR) on 22 December 1978.

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows, in
Item 17 (Civilian Education and Military Schooling), that he completed the
military occupational specialty (MOS) 94B (Ford Service Specialist) course
at Fort Knox, Kentucky in 1979, and was awarded MOS 94B.  Item 18
(Appointments and Reductions) shows he was promoted to sergeant first class
(SFC) on
15 September 1986, and that this was the highest rank he attained during
his military service.  Item 6 (MOSs) shows he was awarded MOS 94B on 13 May
1979 and that he received the skill level 4 upon his promotion to SFC.

5.  On 9 December 1994, the applicant’s transfer from his troop program
unit (TPU) to the USAR Control Group (Reinforcement) was directed in
Headquarters, 100th Division (Institutional Training), Louisville,
Kentucky,
Orders Number 122-033.  These orders indicated the reason for the action
was the voluntary request of the applicant and had the concurrence of the
commander.

6.  On 16 September 1997, USAR Personnel Center Orders Number
D-09-771383 directed the applicant’s discharge from the USAR, effective
16 September 1997.

7.  A Retirement Points Summary on file confirms that between 12 December
1978 and 16 September 1997, the applicant completed 16 years of qualifying
service for non-regular retirement purposes.

8.  Title 10 of the United States Code, section 12731 provides the legal
authority for age and service requirements for non-regular retired pay.  It
states, in pertinent part, that members are entitled to retired pay when
they are at least
60 years of age and have performed at least 20 years of service.  Section
12731a provided the temporary authority to grant non-regular retirement to
members who completed at least 15, but less than 20 years of qualifying
service during the period 23 October 1992 through 31 December 2001 under
policies established by the Secretary concerned for Soldiers involuntarily
separated to support the drawdown of military forces.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to receive non-regular
retired pay at age 60 based on his completing of over 16 years of service
because at the time of his discharge from the USAR, his MOS was
discontinued and there was no unit available within a 50 mile radius of his
home was carefully considered.  However, there is insufficient evidence to
support these claims.

2.  The evidence of record confirms the applicant voluntarily transferred
from his TPU to the USAR Control Group in 1994, and that he was ultimately
discharged from the USAR in 1997.  There is no indication that the
applicant’s MOS was discontinued at the time of his transfer to the USAR
Control Group, or that he was forced to leave his TPU based on the non-
availability of a position.  Further there is no indication he was ever
denied reenlistment or continued service, or that he was involuntarily
discharged, which would have been necessary to qualify for early
retirement. As a result, there is insufficient evidence of any error or
injustice related to his discharge from the USAR that would support
granting the requested relief.
3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 September 1997.  Therefore, the
time for him to file a request for correction of any error or injustice
expired on 15 September 2000.  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

___KLW_  ___DED _  ___QAS_  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.




            ____Kenneth L. Wright____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050007092                            |
|SUFFIX                  |                                         |
|RECON                   |                                         |
|DATE BOARDED            |2006/01/10                               |
|TYPE OF DISCHARGE       |HD                                       |
|DATE OF DISCHARGE       |1997/09/16                               |
|DISCHARGE AUTHORITY     |AR 135-178                               |
|DISCHARGE REASON        |                                         |
|BOARD DECISION          |DENY                                     |
|REVIEW AUTHORITY        |Mr. Chun                                 |
|ISSUES         1.       |136.0000                                 |
|2.                      |                                         |
|3.                      |                                         |
|4.                      |                                         |
|5.                      |                                         |
|6.                      |                                         |


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