RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 January 2006
      DOCKET NUMBER:  AR20050018132


      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. John J. Wendland, Jr.         |     |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, that he be permitted to retire based
upon his 20 years of service and having reached age 60.

2.  The applicant states, in effect, that he has completed over 20 years of
good service, but has been denied retirement based upon the "8 year" rule
even though this has been waived for current war veterans.  He also states
that he has Non-Hodgkin's Lymphoma cancer and Post Traumatic Stress
Syndrome which prevented him from completing the required 8 years of
qualifying service.

3.  The applicant provides a copy of a letter from the Chief, Transition
and Separations Branch, U.S. Army Human Resources Command (USA HRC),
St. Louis, Missouri, dated 11 May 2005, and a letter from his doctor at
Northern Colorado Oncology/Hematology, Greeley, Colorado, dated 18 May
2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 14 March 1986; the date of his transfer to the U.S. Army
Reserve (USAR) Control Group (Retired).  The application submitted in this
case is dated 23 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 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.  The applicant's military records show that he was commissioned a second
lieutenant and entered active duty in the U.S. Army on 29 September 1966.
During his service, he was trained and served in primary specialty 66F
(Nurse Anesthetist).

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he
was promoted to captain on 29 September 1973 and this was the highest rank
he held while serving on active duty.  It also shows that during his
service, he completed a tour of duty in the Republic of Vietnam from 3
September 1967 through 29 August 1968.

5.  On 19 June 1978, the applicant tendered his unqualified resignation
citing his non-selection for promotion to major.  In conjunction with this
request, he asked to be appointed in the USAR in the rank of major due to
his years of service and professional experience.  On 2 August 1978, the
separation authority approved the applicant's unqualified resignation and
directed his separation effective
1 October 1978.  On 16 August 1978, the applicant's request for appointment
as a USAR officer was approved, effective the date of his resignation from
the Regular Army (RA).

6.  On 1 October 1978, the applicant was honorably discharged as a result
of tendering his unqualified resignation from active duty in the RA after
completing a total of 15 years, 2 months, and 20 days of active service.
He then transferred to the USAR, served in the grade of captain, and was
subsequently promoted to major.

7.  The applicant's records contain a copy of Headquarters, USAR Personnel
Center, St. Louis, Missouri, DARP-PAT-R Orders # C-03-911874, dated
14 March 1986, which assigned him to the USAR Control Group (Retired) based
upon completion of 20 or more years in the Reserves, effective 14 March
1986.  This document cited the authority as paragraph 6-2 (Orders and
Certificates) of Army Regulation 140-10 (Army Reserve - Assignments,
Attachments, Details, and Transfers).

8.  The applicant's records contain a copy of a letter from the Chief,
Transition and Separations Branch, USA HRC, St. Louis, Missouri, dated 11
May 2005, issued in response to the applicant's submission of a DD Form 108
(Application for Retired Pay Benefits).  This letter advised the applicant
that a review of his records showed that he had completed the minimum years
of qualifying service, but lacked additional qualifying service as a
Reserve Soldier to satisfy the requirement of the last 8 years of
qualifying service in a Reserve Component and was not eligible for retired
pay benefits under the cited law.  This document also shows that the
applicant was advised that he may apply to the ABCMR for review of his case
to determine the existence of error or injustice.

9.  In support of his application, the applicant provides a copy of the
letter from the Chief, Transition and Separations Branch, USA HRC, which is
discussed above, and a letter from his doctor which states that the
applicant is under his care and requests that the applicant be offered all
assistance possible.

10.  Coordination was made with the Transition and Separations Branch, USA
HRC, St. Louis, Missouri, and a copy of applicant's ARPC Form 249-3
(Chronological Record of Military Service), dated 11 May 2005, was
provided.
11.  The ARPC Form 249-3, dated 11 May 2005, shows that the applicant
served in an enlisted status in the U.S. Naval Reserve beginning 13 March
1958, that he earned 6 years of qualifying service, and had 1 year of non-
qualifying service through retirement year ending 12 March 1965.  The ARPC
Form 249-3 also shows that for retirement year beginning 13 March 1965 and
ending 12 March 1966, the applicant served in an enlisted status in the
USAR, was credited with 304 total points, and earned 1 qualifying year.
This document also shows that from retirement year beginning 13 March 1966
through retirement year ending
12 March 1978, the applicant served as a commissioned officer on active
duty in the RA, was credited with 365 total points for each of these years,
and earned
12 years of qualifying service for retirement.  This document further shows
that for retirement year beginning 13 March 1978 and ending 12 March 1979,
the applicant served as an officer in the USAR, was credited with 218 total
points, and earned 1 qualifying year.  At this point, the ARPC Form 249-3,
dated 11 May 2005, shows that the applicant had earned 20 qualifying years
of service for retirement.  However, the document also shows that the
applicant did not accrue any additional qualifying years of Reserve service
subsequent to the USAR retirement year ending 12 March 1979.  His date of
birth is shown as
30 September 1940.

12.  Paragraph 6-2 of Army Regulation 140-10, in effect at the time,
provides the authority for the applicant's transfer to the retired reserve.
 It states, in pertinent part, that orders transferring members to the
Retired Reserve will cite this paragraph and state the reason for transfer.

13.  This Army regulation also shows in paragraph 6-1 (Eligibility) that
assignment to USAR Control Group (Retired) is authorized as listed in
subparagraphs (1) through (8) and states, "Eligible members must request
transfer".  This paragraph lists the authorized categories and includes, in
pertinent part, subparagraph (2) which states, "Completed a total of 20
years of active or inactive service in the Armed Forces".

14.  Title 10, United States Code (USC), Chapter 1223 (Retired Pay for Non-
Regular Service), section 12731 (Age and Service Requirements), states
that, except as provided in subsection (c), a person is entitled, upon
application, to retired pay computed under section 12739 of this title, if
the person (1) is at least 60 years of age; (2) has performed at least 20
years of service computed under section 12732 of this title; (3) performed
the last six years of qualifying service while a member of any category
named in section 12732(a)(1) of this title, but not while a member of a
regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve,
except that in the case of a person who completed the service requirements
of paragraph (2) before 5 October 1994, the number of years of such
qualifying service under this paragraph shall be eight; and (4) is not
entitled, under any other provision of law, to retired pay from an armed
force or retainer pay as a member of the Fleet Reserve or the Fleet Marine
Corps Reserve.

15.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular
Service), in effect during his Reserve service, implements statutory
authorities governing the granting of "retired pay" to Soldiers and former
Reserve Component Soldiers.  Chapter 2 provides eligibility criteria and,
in pertinent part, states that in order to qualify for non-regular
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 Reserve Component Soldier.  Paragraph 2-8 defines
qualifying service and states, in pertinent part, that a Reserve Component
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 contends, in effect, that he should be permitted to
retire because he completed over 20 years of qualifying service and has
reached age 60.  He further contends that, his retirement has been denied
because of the
"8 year" rule, which he understands has been waived for current war
veterans.  He also contends that his illnesses prevented him from
completing the required
8 years of qualifying service.

2.  Title 10, USC, 12732, requires the applicant to complete his last 8
years of qualifying service while a member of any category named in section
12732(a)(1) of the title.  The applicant contends that this requirement has
been waived for current war veterans.  However, Title 10, USC, 12732,
actually establishes the requirement as 6 years for members who completed
the service requirements subsequent to 4 October 1994.  There is no waiver
provision of the 8 (applicable to this applicant) or 6 year Reserve
Component service requirement.

3.  The applicant provided a letter from his doctor that states the
applicant is under his care and requests all possible assistance.  However,
this is insufficient evidence in support of the applicant's contention that
his illnesses prevented him from completing the required 8 years of USAR
qualifying service.

4.  The applicant's records show that he has 6 qualifying years with the
U.S. Navy and 14 qualifying years with the U.S. Army (RA and USAR) for a
total of
20 qualifying years. However, the applicant's records show he did not
complete the last 8 years of qualifying service while a member in an
authorized Service, as specified in Title 10, USC, 12732.  Therefore, the
applicant is not entitled to retired pay under Title 10, United States
Code, Chapter 67.

5.  There is no evidence in the applicant's records that he requested
transfer to the USAR Control Group (Retired).  The evidence of record shows
that at the time the applicant received orders transferring him to the USAR
Control Group (Retired) he had completed 20 years of qualifying service and
was 45 years old.  However, the applicant's last 7 years of USAR service
were non-qualifying.

6.  The applicant's records are absent evidence that he received counseling
by an authorized U.S. Army official concerning his ineligibility for
retired pay at age 60 based on the fact that he did not meet the
requirement of having performed the last 8 years of qualifying service as a
member of the USAR.

7.  The Board notes that the applicant does have a total of 20 years of
qualifying service, but failed to complete the required last 8 years of
qualifying service while a member in an authorized Service.  The Board also
recognizes that since the applicant had already earned 20 years of
qualifying service at the time of his discharge from active duty in the
U.S. Army, this may have been a contributing factor to the applicant's
failure to earn additional years of qualifying service in the USAR
subsequent to his discharge from active duty.  The Board further notes the
absence of evidence that the applicant received counseling concerning his
ineligibility for retired pay and associated benefits at age 60 when he was
transferred to the USAR Control Group (Retired).  Therefore, in view of the
circumstances in this case, it would be appropriate, as an exception to
policy, to administratively adjust retirement points the applicant earned
in two of his qualifying years in the USAR and redistribute these points to
his last 7 years of non-qualifying USAR service, thereby establishing them
as USAR qualifying years for retired pay.  Following redistribution of his
retirement points it would then be appropriate to certify and process the
applicant for retired pay in the rank of major/pay grade O-4, effective the
first day of the month following the date of these Board Proceedings since
he would not have been eligible for retired pay, but for this Board’s
action.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 March 1986; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
13 March 1989.  The applicant did not file within the 3-year statute of
limitations; however, there is compelling evidence to show that it would be
in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

__SLP __  __CAD __  __KSJ __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation of relief. As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected as
follows:

      a.  Redistribute the applicant's inactive/active duty points, for
retirement qualification credit only, from USAR retirement years 1965 03 13
- 1966 03 12 and 1978 03 13 - 1979 03 12, and credit them to the
applicant's last 7 USAR retirement years, as shown below:

                                            Point    Remaining / Total
      Beginning Date   Ending Date           Adjustment     Points
Creditable

      1965 03 13       1966 03 12       Debit:   26               278
      1978 03 13       1979 03 12       Debit: 168       50
      1979 03 13       1980 03 12       Credit:  35           50
      1980 03 13       1981 03 12       Credit:  35           50
      1981 03 13       1982 03 12       Credit:  21           50
      1982 03 13       1983 03 12       Credit:  20           50
      1983 03 13       1984 03 12       Credit:  13           50
      1984 03 13       1985 03 12       Credit:  35           50
      1985 03 13       1986 03 12       Credit:  35           50

      b.  As a result of the above administrative corrections, certify and
process the applicant for retired pay in the rank of major/pay grade O-4,
effective the first day of the month following the date of this ABCMR
Record of Proceedings.



                                  ___SHIRLEY L. POWELL___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050018132                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060118                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19860314                                |
|DISCHARGE AUTHORITY     |AR 140-10, Paragraph 6-2                |
|DISCHARGE REASON        |Completion of 20 or More Years in the   |
|                        |Reserve                                 |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |136.0400.0000                           |
|2.                      |135.0200.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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