RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 August 2006
      DOCKET NUMBER:  AR20050015987


      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             |
|     |Ms. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Dean A. Camarella             |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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 entitled to retired pay
and benefits.

2.  The applicant states, that in effect, that he completed 3 years and
7 months in the United States Marine Corps (USMC).  In 1988, he was
assigned to the
5th Infantry Division (Mechanized) at Fort Polk, Louisiana and he was
advised that there were no funds to drill that year.  In 1997, he was
assigned to the Mexico City Customs Attaché Office and due to the critical
nature and mission of his position he was not allowed to perform active
duty for training (ADT) from 1997 to 1998.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty), a copy of a letter from a Retired
Customs Criminal Investigator, dated 21 October 2005, and a copy of his
combat history.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 March 1999.  The application submitted in this case is
dated 24 October 2005 but was received for processing on 2 November 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 records show he was appointed as a
commissioned officer in the Regular Army (RA) in the rank of second
lieutenant (2LT/O-1) on 9 September 1974, with 3 years and 7 months of
enlisted service in the USMC, at the age of 28 years, 9 months, and 3 days.
 His date of birth is 7 February 1946.  He was promoted to captain (CPT/O-
3) effective 23 December 1978.  He continued to serve until he was
honorably discharge on 1 February 1986, under the provisions of Army
Regulation 635-120, chapter 11, for failure of selection for permanent
promotion.


4.  The applicant was appointed in the Reserve as a commissioned officer,
effective 2 December 1986, in the rank of captain (CPT/O-3).  He was
promoted to lieutenant colonel (LTC/O-5) effective 1 February 1993.  His
MRD (mandatory removal date) was 6 February 1999.

5.  The applicant was considered and not selected for promotion to colonel
by the 1998 and 1999 Reserve Components Selection Boards (RCSB).

6.  The applicant continued to serve in the USAR until he was released from
the USAR Control Group (IMA [Individual Mobilization Augmentation])
effective 1 March 1999, at the age of 53 years and 22 days, and was
transferred to the Retired Reserve, due to completion of maximum authorized
years of service, in the rank of LTC.

7.  The applicant's Summary of Retirement Points shows he had completed
20 years and 3 days of qualifying service for retirement purposes.  He
earned more than 50 retirement points during his RYEs (retirement years
ending) 15 August 1990, 15 August 1991, 15 August 1995, and 15 August 1996.
 A review of his additional RYEs show he earned less than 50 points, and
these years were not qualifying years for retirement, and he did not serve
the last 6 years of qualifying service in a Reserve Component (RC).

8.  The applicant provides a copy of a letter from a retired customs
criminal investigator, dated 21 October 2005, who served with him at the
Customs Attaché Office from 1995 to 1999.  The investigator states that in
August 1997, the applicant, a customs intelligence officer, was assigned to
his office and the applicant told him that he was asked by the DIA (Defense
Intelligence Agency) to apply for active reserve duty.  The investigator
then told the applicant that if he had known that he was a Reservist, he
would not have accepted him in his office. He was occupying a critical and
sensitive position which required his attention 100 percent of the time.

9.  The applicant was involved in developing intelligence and an important
money laundering investigation was ongoing at the time that was immensely
challenging.  The applicant played a significant role.

10.  Throughout his assignment in Mexico City, the applicant was tasked to
travel frequently throughout the Republic of Mexico to assist senior
customs representatives to develop cases.  The applicant was highly
involved in matters involving national security and participated in high
U.S.-Mexico bilateral agreements where he served as advisor and consultant
to customs executives attending these high level talks between the two
nations.  Thereafter, the applicant informed the investigator that had he
been given a choice to stay in the inactive reserves or retire, he would
have chosen to retire.

11.  The applicant provides a copy of his combat history which shows that
he participated in several operations while he served in the USMC.

12.  The applicant's records contain a copy of a memorandum from the Chief,
Transitions and Separation Branch, US Army Human Resources Command (AHRC)-
St. Louis, dated 27 September 2005.  This memorandum was in reply to his DD
Form 108 (Application for Retired Pay Benefits).  It stated that Title 10,
United States Code (USC), sections 67, (now known as sections 12731 to
12737), authorized retired pay for current and former members of the RC who
had reached age 60 and completed a minimum of 20 years of qualifying
service.

13.  A further requirement was that the last 6 years of qualifying service
must be performed as a member of the RC.  This meant that any time after
the first 12 years of qualifying service, regardless of the component, a
member must complete 6 additional, qualifying years of service as a
reservist.  The last 6 years of Reserve service need not be consecutive.
However, only those periods of service which were performed solely in a
Reserve status were counted.  A review of the applicant's records show he
completed the minimum years of qualifying service, but lacked additional
qualifying service as a Reserve Soldier to satisfy the requirement of the
last 6 years of qualifying service in a RC. He was found ineligible for
retired pay benefits under the above cited law.  He was informed that he
could apply to this Board for relief.

14.  Army Regulation 135-155 prescribes the policies and procedures for
promotion of Reserve officers.  The regulation provides that mandatory
selection boards will be convened each year to consider Reserve Component
officers in an active status for promotion to colonel.  The regulation
provides that in order to be qualified for promotion to colonel an
individual must have completed the Command and General Staff Officer Course
(CGSOC) and 7 years of time in grade (TIG) as a lieutenant colonel (LTC/O-
5) on or before the convening date of the respective promotion board.

15.  Army Regulation 140-10 sets forth the basic authority for the
assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7
of the regulation relates to the removal of Soldiers from an active status
and states, in pertinent part, that Soldiers removed from an active status
will be discharged or, if qualified
and if they so request, will be transferred to the Retired Reserve.

16.  Paragraph 7-2 of Army Regulation 140-10, provides guidance on length
of Reserve service.  It states, in pertinent part, that the actual removal
date will be 30 days after:  (a) The individual completes 28 years of
commissioned service if under age 25 at initial appointment or (b) the
individual’s 53rd birthday if age 25 or older at initial appointment.

17.  Army Regulation 135-180 prescribes the policy and procedures for
granting retired pay benefits at age 60, under Title 10, United States
Code, chapter 67, sections 1331 to 1337.  This regulation specifies, in
pertinent part, that to be eligible for retired pay an individual must have
attained age 60 and completed a minimum of 20 years of qualifying service,
and serve the last 6-years of his or her qualifying service as a Reserve
Component Soldier, during the period 5 October 1994 through 31 December
2001, nor do they have to be continuous.  Subsequent to 1 July 1949,
qualifying service is granted for each year of service an individual earns
50 or more retirement points.

18.  Sections 12731 through 12739 of Title 10, USC, authorize retired pay
for Reserve Component military service.  Under this law, a Reserve Soldier
must complete a minimum of 20 qualifying years of service to be eligible
for retired pay
at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve
Soldier earned 50 retirement points or more.  This law further requires
that the last         6 years of qualifying service must in a Reserve
Component between the period 5 October 1994 through 31 December 2001.

19.  The term "good years" is an unofficial term used to mean years in
which
50 or more retirement points are earned during each year, and which count
as qualifying years of service for retirement benefits at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was commissioned a RA
officer, over the age of 28.  He was honorably discharged from the Regular
Army and was appointed in the USAR on 2 December 1986, in the rank of CPT.
He was promoted to LTC and was considered and not selected for promotion to
colonel by the 1998 and 1999 RCSBs.

2.  The applicant was removed from an active status and was transferred to
the Retired Reserve, in accordance with the appropriate regulation, at the
age of 53 years and 22 days.



3.  The applicant completed 20 years and 3 days of qualifying service for
retired pay.  He failed to meet the criteria of Title 10, US Code, Section
12731 through 12737, which required that the last 6 years of qualifying
service must be performed as a member of the RC.  He was not issued, nor
eligible to have been issued, a notification of qualification for retired
pay at age 60 (20-Year Letter) prior to his assignment to the Retired
Reserve.  He is currently 60 years old.

4.  The evidence shows that the applicant completed the minimum years of
qualifying service, but lacked the additional qualifying service as a
Reserve Soldier, to satisfy the requirement of the last 6 years of
qualifying service in a RC.

5.  A review of the applicant's RPAS shows that in addition to 1997 and
1998 there were other years that he did not participate in ADT.  The
available evidence does not show that the applicant explored other avenues
available to him where he could have accumulated retirement points.

6.  The Board noted the letters of support provided by the applicant.
However, based on the facts and circumstances of this case, he is not
entitled to correction of his records to show that he is entitled to
retired pay and benefits.

7.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 March 1999; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 28 February 2002.  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

__RTD __  __r_____  _DAC ___  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.




                                  _____Richard T. Dunbar______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015987                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060817                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19990301                                |
|DISCHARGE AUTHORITY     |AR 140-10. . . . .                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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