RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 October 2006
      DOCKET NUMBER:  AR20060004254


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Melinda Darby                 |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. Ronald Gant                   |     |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, correction of his records to show he
completed 20 years of qualifying service for retired pay at age 60 and
transferred to the Retired Reserve.  He also requests receipt of his
notification of eligibility for retired pay at age 60 (20-Year Letter).

2.  The applicant states he should have been retired from the U.S. Army
Reserve, but his slot was cut back during the 1989 timeframe.  He thought
he had completed 20 years of qualifying service for retirement from the
U.S. Army Reserve, but he found out that he was short by several months.
He states that he is approaching 60 years old and has not received his 20-
Year Letter.

3.  The applicant provides a supplemental letter and his Enlisted
Biographical Sketch, dated 18 January 1988.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred
on 2 May 1990.  The application submitted in this case is dated 17 February
2006.

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 19 August 1946.  He was inducted into the
Army on 5 April 1966 and was released from active duty on 4 April 1968 at
his expiration of term of service.  He was transferred to the U.S. Army
Reserve (USAR) Control Group (Annual Training) on the following date.  He
was discharged from the USAR Control Group on 4 April 1972.

4.  After a break in service, the applicant enlisted in the USAR on 1 May
1974. He continued to serve in the Reserve component through a series of
reenlistments.  He was promoted to staff sergeant on 21 June 1980.

5.  The applicant’s Enlisted Biographical Sketch, dated 18 January 1988,
shows he completed 19 years, 8 months, and 18 days total years of service;
2 years of active service; and 17 years, 8 months, and 18 days of Reserve
service.

6.  Item 38 (Record of Assignments) on the applicant’s DA Form 2-1
(Personnel Qualification Record) shows his unit, Company B, 3398th U.S.
Army Reception Battalion, Kinston, North Carolina was “over strength” in
November 1988.

7.  Headquarters, 108th Division (Training), Charlotte, North Carolina
Orders Number 60-18, dated 2 October 1989, shows the applicant was
voluntarily reassigned from Company B, 3398th U.S. Army Reception
Battalion, Kinston, North Carolina to the USAR Control Group
(Reinforcement) with an effective date of 2 October 1989.

8.  Department of the Army, U.S. Army Reserve Personnel Center, St. Louis,
Missouri Orders Number D-05-035054, dated 2 May 1990 discharged the
applicant from the Ready Reserve on 2 May 1990 under the provisions of
Army Regulation 135-178.

9.  The applicant’s Retirement Points Accounting System, Summary Points
Inquiry/Update for the retirement year beginning on 5 April 1966 and ending
on 30 April 1990 shows he completed 17 years of qualifying service for
retired pay at age 60.

10.  In the processing of this case, a staff advisory opinion was obtained
from the Supervisor, Office of Retirements and Annuities, U.S. Army Human
Resources Command, St. Louis, Missouri.  The opinion stated that Sections
12731 through 12737 of Title 10, United States Code authorizes retired pay
for Reserve component military service.  To be eligible for retired pay
under this law, a Reserve Soldier or former Reserve Soldier upon attaining
60 years of age must have completed a minimum of 20 qualifying years of
service.  After 1 July 1949, a qualifying year is one in which the Reserve
Soldier earned at least 50 retirement points.  The last 8 qualifying years
must be in a Reserve component.  The law authorizing retired pay based on
service in the Reserve component does not authorize this pay until all
requirements have been fulfilled.  The opinion stated that the applicant
had only 17 years of qualifying service for retired pay at age 60.  This
office recommended the applicant’s request be denied since he does not have
20 qualifying years of service.

11.  A copy of the opinion was forwarded to the applicant; however, he did
not respond within the allotted timeframe.

12.  The applicant reached age 60 on 19 August 2006.
13.  Sections 12731 through 12739 of Title 10, United States Code,
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.

DISCUSSION AND CONCLUSIONS:

1.  Orders show the applicant was voluntarily transferred from his Reserve
unit, Company B, 3398th U.S. Army Reception Battalion, to the USAR Control
Group (Reinforcement) on 2 October 1989.  He was subsequently discharged
from the Ready Reserve on 2 May 1990.  At the time of his discharge, he had
completed only 17 years of qualifying service for retired pay at age 60.
He should have been aware of this fact when his biographical sketch was
completed in January 1988.

2.  By law, the applicant is required to complete 20 years of qualifying
service for retired pay at age 60.  Therefore, he is not eligible for
receipt of a 20-Year Letter or to be transferred to the Retired Reserve.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 May 1990; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 1 May 1993.  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

MD______  JR______  RG______  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.




                                  Melinda Darby_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004254                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061019                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |126.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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