RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            04 MAY 2006
      DOCKET NUMBER:   AR20050010892


      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. Allen Raub                    |     |Chairperson          |
|     |Ms. Karmin Jenkins                |     |Member               |
|     |Mr. David Tucker                  |     |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 the 8-year rule requiring that he serve in
the Reserve Components before becoming eligible for retirement be waived in
his case.

2.  The applicant states, in effect, that he served over 19 years of active
duty and 5 years in the National Guard and was never aware of the
requirement to spend the last 8 years in the Reserve Components in order to
be retirement eligible.  He goes on to state that had he known of the
requirement, he would have stayed in the National Guard to attain his
eligibility.  He also states that he left active duty because his father
was ill with cancer at the time and that it was his understanding at the
time he left the National Guard that he would be eligible for retirement at
age 60.

3.  The applicant provides a copy of his Retirements Points History
Statement, a copy of a letter from the Human Resources Command – St Louis,
Missouri (HRC-St. Louis), explaining why his application for retirement was
denied, a copy of his Application for Retired Pay Benefits (DD Form 108),
and a copy of his report of separation (DD Form 214) from the National
Guard.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 29 April 1988.  The application submitted in this case was
received on 21 July 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 was born on 2 March 1944 and enlisted on 7 March 1963.
He remained on active duty through a series of continuous reenlistments and
was promoted to the pay grade of E-6 on 9 March 1971.

4.  On 10 August 1982, he was honorably discharged at Fort Dix, New Jersey,
due to the short length of time remaining on active duty that precluded
reassignment.  He had served 19 years and 25 days of total active service.

5.  On 11 August 1982, he enlisted in the United States Army Reserve (USAR)
for a period of 3 years.  At the time of his enlistment he completed and
signed his contract indicating that he understood that to qualify for
retirement benefits at age 60, he must achieve 20 qualifying years of
Federal service and be a member of the Reserve Component during the last 8
years of military service (paragraph 3 of DA Form 4688/2).

6.  On 29 April 1983, he enlisted in the Tennessee Army National Guard
(TNARNG) for a period of 1 year.  He remained in the TNARNG through a
series of extensions until he was discharged on 29 April 1988.

7.  On 2 March 2004, the applicant submitted an Application for Retired Pay
Benefits to the HRC-St. Louis.  On 31 March 2004, the HRC-St. Louis
responded to a member of Congress regarding the applicant’s eligibility for
retirement and explained that the applicant was not eligible for retired
pay benefits because he had not served the last 8 years in the Reserve
Component.  The applicant had only completed the last 4 qualifying years in
the Reserve Component.  He was advised that he could apply to this Board
for an exception.

8.  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.

9.  The Fiscal Year 2003 National Defense Authorization Act, section 631,
amended Title 10, United States Code, section 12731 to permanently reduce
requirement from last 8 years to last 6 years of qualifying service in
Reserve Component to be eligible for non-regular Retired Pay.  Those who
had performed at least 20 years of qualifying service before 5 October
1994, would still be required to have eight years.  Additionally, the
effective date for the change was 1 October 2002, with the proviso that no
benefit shall accrue to any person before that date by reason of the
change.


DISCUSSION AND CONCLUSIONS:

1.  While the Board is sympathetic to the applicant’s present situation, he
has submitted no evidence to substantiate that he was incorrectly informed
that he had sufficient service to qualify for retirement at age 60.
Accordingly, in the absence of evidence to show that an error or injustice
occurred, the Board finds no basis to waive the four years of service in
the Reserve Components he needed to qualify for Retired Pay benefits.

2.  The applicant’s contention that he was not informed that he had to
serve the last 8 years in the Reserve Components has been noted and found
to be without merit.  The applicant’s enlistment contract specified the
requirement and the applicant acknowledged that he understood the
requirement at the time of his enlistment in the USAR and his contract is
contained in his official records.  Additionally, he has provided no
evidence to show that he was improperly informed that he was retirement
eligible when he was discharged from the TNARNG.

3.  It appears that the applicant had more than sufficient opportunity to
acquire the 4 creditable years of service he needed to attain eligibility
for retirement and he simply did not do so.  To waive the 4 years at this
time would afford him a benefit that is not afforded to others in similar
circumstances.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 April 1988; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 28 April 1991.  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

____AR _  ___KJ___  __DT ___  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.




                                  ______Allen Raub__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050010892                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060504                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19880429                                |
|DISCHARGE AUTHORITY     |NGR 600-200                             |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |342/USAR AGE 60                         |
|1.136.0400              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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