RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 November 2006
      DOCKET NUMBER:  AR20060005641


      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:

|     |Mr. Patrick McGann                |     |Chairperson          |
|     |Mr. Richard Sayre                 |     |Member               |
|     |Mr. David Haasenritter            |     |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
receipt of his notification of eligibility for retired pay at age 60 (20-
Year Letter).

2.  The applicant states he served 32 years active military duty and 13
years active Reserve.  He states he was recalled to active duty for 16
years and was then given an honorable disability discharge.  He states he
served 19 years active service and 16 years active Reserve service.  He
believes that this qualifies him for military retirement.  He states he
received a letter, dated 29 March 2006, which made him believe he was
granted his retirement.  He received a second letter on 30 March 2006 which
indicated he did not qualify for retired pay, which he strongly believes is
an error.  He also states that he does not see how he could be in the
Reserves the last eight years because he was on active duty his last
16 years of service and was given a disability discharge at that time.

3.  The applicant provides a WD AGO Form 53-55 (Enlisted Record and Report
of Separation); three discharge documents; a letter, dated 29 March 2006,
from the Supervisor, Retirement and Annuity, Transitions and Separations
Branch, U.S. Army Human Resources Command  - St. Louis (HRC-STL); a letter,
dated 30 March 2006, from the Chief, Transition and Separations Branch, HRC-
STL; his ARPC Form 249-3 (Chronological Record of Military Service); orders
removing him from the Temporary Disability Retired List; a letter, dated
19 December 2005, from the Defense Finance and Accounting Service (DFAS);
and his Statement of Service - Enlisted Personnel.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 25 May 1977.  The application submitted in this case is dated
12 April 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 8 April 1924.  He was inducted into the Army
(Enlisted Reserve Corps) (ERC) on 2 June 1943 and served in an inactive
status in the ERC until 16 June 1943.  He entered active duty on 17 June
1943 and was discharged on 2 February 1946.

4.  After a break in service, the applicant enlisted in the U.S. Army
Reserve (USAR) on 12 November 1947.  He continued to serve in the Reserve
component through a series of reenlistments.  He was discharged from the
USAR on 28 May 1962.

5.  The applicant enlisted in the Regular Army on 29 May 1962 and continued
to serve in the Regular Army through a series of reenlistments.

6.  The applicant was released from active duty on 25 May 1977 and he was
placed on the Temporary Disability Retired List (TDRL) on the following
date.

7.  The applicant’s Statement of Service, dated 4 October 1977, shows he
completed 18 years, 8 months, and 3 days of qualifying Federal service
creditable for retirement; 13 years, 5 months, and 27 days of other than
qualifying Federal service creditable for basic pay purposes only; and 32
years and 2 months total service for basic pay purposes.

8.  Department of the Army, U.S. Army Military Personnel Center,
Alexandria, Virginia Orders D39-23, dated 26 February 1982, removed the
applicant from the TDRL on 28 February 1982 because of permanent physical
disability and on the following date, he was permanently retired with a 50
percent disability rating.

9.  The applicant reached age 60 on 8 April 1984.

10.  By a letter, dated 19 December 2005, DFAS informed the applicant that
Section 1414 of Title 10, United States Code authorized Concurrent Receipt,
currently called Concurrent Retirement and Disability Payments (CRDP), for
certain individuals who currently had a Retired Pay offset due to
disability compensation from the Department of Veterans Affairs (DVA).  The
letter stated that, in order to qualify for payments under this section of
law, an individual must be rated by the DVA at 50 percent disabling or
unemployable.  Further, individuals must be retired for length of service.
In addition, the law allowed individuals to receive CRDP if they were
retired for a disability and also qualified for length of service.  The
records at DFAS indicated the applicant was retired for a disability and
did not have 20 years of active duty to qualify under an active duty law.
The records at DFAS also indicated he had 20 or more years of Service for
Basic Pay computations.  The applicant was advised to provide documentation
(i.e. Copy or Copies of his Retirement Orders; his 20-Year Letter, his
Point Credit Summary, and his DD Form 214) regarding his retirement status
to be considered for entitlement to CRDP.

11.  In a letter, dated 29 March 2006, the Supervisor, Office of
Retirements and Annuities, HRC - St. Louis, Missouri, advised the applicant
that the review of his Official Military Personnel File had been completed
and a Chronological Record of Military Service (ARPC Form 249) had been
constructed as a result of that review.

12.  His Chronological Record of Military Service shows he was in the
Regular Army during the retirement year beginning 29 May 1962 and ending
25 May 1977.  This document shows he completed 31 years, 2 months, and
15 days total service for longevity pay purposes.

13.  In a letter, dated 30 March 2006, the Chief, Transition and
Separations Branch, informed the applicant that 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 July 1, 1949, a
qualifying year is one in which the Reserve Soldier earned at least 50
retirement points, and the last 8 qualifying years must be in a Reserve
component.  The letter informed the applicant he did not have the last
eight years in a Reserve component.

14.  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.

15.  Title 10, U.S. Code, sections 1331 through 1337 at the time, provided
that a non-regular service member is entitled, upon application, to retired
pay if the person is at least 60 years of age and has performed at least 20
years of qualifying service, of which the last eight years of qualifying
service were performed while a member of a reserve component.

16.  The Fiscal Year 2004 National Defense Authorization Act provided for
phased-in restoration of the retired pay deducted from the accounts of
military retirees because of their receipt of DVA compensation.  CRDP
applies to all retirees with DVA-rated, service-connected disability of 50
percent or higher but does not apply to disability retirees with less than
20 years of service.
DISCUSSION AND CONCLUSIONS:

1.  The applicant was released from active duty on 25 May 1977 due to
physical disability and was placed on the TDRL on 26 May 1977.  At that
time, his Statement of Service indicated he had completed 18 years, 8
months, and
3 days of qualifying Federal service creditable for retirement and a total
of
32 years and 2 months total service for basic pay purposes.

2.  Orders show the applicant was removed from the TDRL on 28 February 1982
and was permanently retired on 1 March 1982 with a 50 percent disability
rating.

3.  The applicant contends that he does not see how he could be in the
Reserves the last eight years because he was on active duty his last 16
years of service.  The applicant is correct; however, it was his decision
to enlist in the Regular Army in 1962 and forego continuing Reserve
component service to qualify for a Reserve retirement

4.  His Chronological Record of Military Service does verify the applicant
was on active duty in the Regular Army the last eight years of service.  By
law to qualify for a Reserve retirement, the applicant was required to
complete 20 years of qualifying service for retired pay at age 60 and the
last eight years of qualifying service must have been performed while a
member of a reserve component.  Regrettably, the applicant is not eligible
for retired pay at age 60 or receipt of a 20-Year Letter.

5.  It is noted that the applicant did not question his retirement status
until 28 years after he was retired for physical disability, after the
possibility of his being eligible for CRDP was raised.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 May 1977; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 24 May 1980.  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

PM______  RS______  DH______  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.



                                  Patrick McGann________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005641                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061107                                |
|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.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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