RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 December 2006
      DOCKET NUMBER:  AR20060006129


      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:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Larry W. Racster              |     |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 his records be corrected to
show that he completed over 20 qualifying years of service.

2.  The applicant states, in effect, that he should be credited with a
total of
296 points for the retirement year beginning 8 April 1970 and ending 7
April 1971 because he served on active duty during that period and 281
active duty points and 15 membership points are not recorded in his
military records.  The applicant also states, in effect, that with his dual
component status and retirement points corrected, he will have over 20
qualifying years of service, thereby becoming eligible for Concurrent
Retirement and Disability Pay (CRDP) or Combat-Related Special Compensation
(CRSC).

3.  The applicant provides copies of a letter to the Defense Finance and
Accounting Service, Retired and Annuity Pay, London, Kentucky, dated 22
April 2002; two Headquarters, Department of the Army (HQDA), Office of The
Adjutant General (TAG), St. Louis, Missouri, Statements of Retirement
Points, dated
15 July 1969 and 26 January 1971; HQDA, Office of TAG, St. Louis, Missouri,
letter, dated 6 April 1972, subject:  Revocation of Discharge; HQDA, Office
of TAG, St. Louis, Missouri, Letter Orders Number 04-91590, dated 6 April
1972, subject:  Amendment/Revocation/Rescission of Orders; and HQDA, Office
of TAG, St. Louis, Missouri, dated 6 April 1972, subject:  Waiver for
Retention in the U.S. Army Reserve.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 12 February 1981, the date of his permanent physical disability
retirement. The application submitted in this case is dated 22 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's military service records show that he was born on 5
December 1938.  The applicant was inducted into the U.S. Army on 8 April
1958.  Upon completion of basic combat training and advanced individual
training, the applicant was awarded military occupational specialty (MOS)
310 (Field Communications Crewman).  On 7 April 1960 he was released from
active duty and transferred to the U.S. Army Reserve (USAR).  On 4
September 1962, the applicant enlisted in the Regular Army (RA), entered
active duty, was trained, and awarded MOS 934 (Food Inspection Specialist).
 On 24 May 1966, he was honorably discharged from the RA in the rank of
specialist five (SP5)/pay grade E-5 to accept appointment as a commissioned
officer in the USAR with concurrent call to active duty.  On 23 May 1968,
the applicant was honorably released from active duty, in the rank of first
lieutenant/pay grade O-2, and transferred to the USAR Control Group
(Reinforcement).  On 30 June 1970, the applicant enlisted in the RA in the
rank SP5/pay grade E-5 and reclassified into MOS 76J (Medical Supplyman).
While on active duty he was promoted to the rank of sergeant first class
(SFC)/pay grade E-7, effective 27 December 1978, and continued to serve in
the USAR as a commissioned officer in a dual component status.  On 23 May
1979, the applicant was promoted in the USAR to the rank of major (MAJ)/pay
grade O-4.  On 12 February 1981, the applicant was retired in the rank of
MAJ/pay grade O-4 with a permanent physical disability rating of 60
percent.  At the time, the applicant was credited with the completion of 18
years, 4 months, and 3 days active service and 4 years, 6 months, and
2 days of inactive service.

4.  In support of his application, the applicant provides a copy of a
letter in which he offers a summary of his military service and a listing
of the retirement points that he earned each year.  The applicant also
provides documents that provide, in pertinent part, information concerning
his retirement points for retirement year ending (RYE) 7 April 1969 and the
waiver granted for unsatisfactory participation during RYE 7 April 1970.

5.  In connection with the processing of this case, an advisory opinion was
obtained from the Chief, Veterans Support Branch, Personnel Support
Division, U.S. Army Human Resources Command (USA HRC), St. Louis, Missouri.
 The USA HRC advisory official provides a copy of AHRC Form 606-E
(Statement of Service with Retirement Points), dated 8 June 2006,
pertaining to the applicant.  The advisory official explains that
membership points are authorized for Reserve service, but not active duty
service.  This USA HRC official also states that the form reflects the
correct number of retirement points for the applicant's entire Army
service.  In pertinent part, the form shows that the applicant is credited
with 82 membership points and 6,700 active duty points, for a total of
6,782 retirement points and 20 qualifying years of service.
6.  The applicant was provided a copy of the USA HRC advisory opinion in
order to have the opportunity to respond.  In a letter, dated 25 October
2006, the applicant stated that although he has a number of retirement
points that are not listed on the AHRC Form 606-E, dated 8 June 2006, he
does not see a need to pursue the retirement points because the form
credits him with 20 qualifying years of service for reserve retirement.  He
adds, in effect, that under the National Defense Authorization Act for
Fiscal Year 2004, a Reservist no longer needs 7,200 points to qualify and
he provides an excerpt from Army Echoes, Issue 1, January - April 2004,
that outlines this information.  The applicant concludes by stating that he
has no further rebuttal because this new information could not possibly be
denied by the ABCMR.

7.  Army Regulation 140-185 (Training and Retirement Points Credit and Unit
Level Strength Accounting Records) prescribes the types of training and
activities for which retirement points are authorized.  It also discusses
the procedures for recording retirement point credits and training for USAR
Soldiers.  Paragraph
2-1 (Criteria for crediting retirement points) states that the limitations
on the number of points which may be credited to a Soldier during a
retirement year are a maximum of 365 (366 during leap year) points, and a
maximum of 60 points for inactive duty training (IDT) and membership
points; however, the Annual or Terminal Statement of Retirement Points will
report all points earned.  Table
C-1 (Retirement Point Credits for Membership in an Active Status in the
Army Reserve for Less Than a Full Retirement Year) of the regulation shows,
in pertinent part, that for a Soldier who serves from 61 through 85 days in
an active reserve status, the individual is credited with 3 membership
points.

8.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular
Service) implements statutory authorities governing the granting of
"retired pay" to Soldiers and former Reserve Component Soldiers.  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.

9.  Title 10, United States Code, chapter 61, provides disability
retirement or separation for a member who is physically unfit to perform
the duties of his office, rank, grade or rating because of disability
incurred while entitled to basic pay.  In addition, Title 10, United States
Code, section 1201, provides for the physical disability retirement of a
member who has an impairment rated at least
30 percent disabling.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) and the Department of Defense Financial Management
Regulation note that a Soldier is eligible for disability retired pay if he
has a rating of less than 30 percent and has 20 years of active service for
retirement, or if he or she has a disability rating of 30 percent or
higher.  The percentage multiplier is either the total disability
percentage rating or 2.5 percent of the total years of service, including
any fraction thereof (i.e., 7 months equals 7/12), disregarding any
fraction of a month.  Calculations are to use the higher of the two
percentages, but not more than 75 percent, as a multiplier of the retired
pay base to arrive at the retired pay entitlement.  For Soldiers who first
became members of the Armed Forces on or before 7 September 1980, retired
pay base is computed on the highest grade “satisfactorily” held or the
current grade.  Department of the Army makes the final grade decision.

11.  Department of Defense (DoD) Financial Management Regulation (FMR),
Volume 7B (Military Pay Policy and Procedures - Retired Pay), Chapter 1
(Initial Entitlements - Retirements), section 0101 (Service Creditable for
Retirement Purposes), paragraph 010107 (Disability Retirement) states, in
pertinent part, a member of a Regular Component of the Armed Forces is
credited with the greater of all service he or she is considered to have
for the purpose of separation or mandatory elimination from the active
list.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected
to show 15 membership points, 281 active duty points, and a total of 296
points for retirement year beginning 8 April 1970 and ending 7 April 1971;
thereby showing he has 20 qualifying years of service.

2.  The evidence of record shows that for retirement year beginning 8 April
1970 and ending 7 April 1971, the applicant served in the USAR from 8 April
1970 to 29 June 1970; a total of 83 days.  The evidence of record also
shows that this equates to an individual being credited with three (3)
membership points.  The evidence of record further shows that the applicant
served on active duty in the RA from 30 June 1970 to 7 April 1971; a total
of 281 days.  Therefore, the applicant is not entitled to correction of his
records to show 15 membership points for RYE 7 April 1971.  However, in
view of the foregoing, the applicant is entitled to correction of his
records to show 3 membership points, 281 active duty points, and 284 total
retirement points for RYE 7 April 1971.

3.  The evidence of record shows that on 12 February 1981 the applicant
retired in the grade of rank of MAJ/O-4 with a permanent physical
disability rating of
60 percent.  At the time, the applicant was credited with completion of
18 years, 4 months, and 3 days active service and 4 years, 6 months, and 2
days of inactive service.  The evidence of record also shows that, at that
time, the applicant should have been credited with 82 membership points and
6,700 active duty points, for a total of 6,782 retirement points and 20
qualifying years of service.  Therefore, the applicant is entitled to
correction of his records to show he earned 82 membership points and 6,700
active duty points, for a total of 6,782 retirement points and 20
qualifying years of service.

4.  The DFAS website at:  http://www.defenselink.mil/dfas provides that a
Soldier found to be physically unfit for further military service and who
meets certain standards specified by law, will be granted a disability
retirement.  The disability retirement may be temporary or permanent.  If
temporary, the status should be resolved within a five-year period.  The
website further provides that the amount of disability retired pay is
determined by one of two methods.  The first method is to multiply the base
pay or average of highest 36 months of active duty pay at the time of
retirement, by the percentage of disability which has been assigned.
Members who entered the service September 8, 1980 or later must use the
highest average formula.  This computation is sometimes referred to as
“Method A".  The second method is to multiply only the years of active
service at the time of retirement by 2.5 percent by the base pay or average
of the highest 36 months of active duty pay at the time of retirement.
This computation is sometimes referred to as "Method B".  DFAS establishes
the retiree's account using the method that results in the greatest amount
of retired pay.  If the retiree desires that another method be used, he or
she may request (in writing) that the other method be used.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 February 1981; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
11 February 1984.  The applicant did not file within the 3-year statute of
limitations; however, based on the available evidence, it would be in the
interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___RTD _  ___DED_  ___LWR_  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected as follows:

      a.  credit the applicant with three (3) membership points and 281
active duty points, for a total of 284 retirement points for the RYE 7
April 1971; and

      b.  show that the applicant completed a total of 82 membership points
and 6,700 active duty points, for a total of 6,782 retirement points and 20
qualifying years of service.

2.  As a result of the foregoing corrections, the Defense Finance and
Accounting Service (DFAS) shall be notified of the Board's determination
and:

      a.  conduct a review of the applicant's permanent physical disability
retired pay account, which considers his military service while on active
duty in an enlisted status in the RA and concurrently in a dual component
status as a USAR commissioned officer from 30 June 1970 through 12 February
1981;

      b.  notify the applicant of the results of the review concerning his
disability retired pay account; and,

      c.  if applicable, authorize an increase in the applicant's
disability retired pay, with an effective date of 13 February 1981 (i.e.,
the date the applicant was retired based on permanent physical disability),
along with payment of all monies due the applicant as a result of the
authorized increase in the applicant's disability retired pay on the
established effective date.

3.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
awarding 15 membership points for RYE 7 April 1971.




                            _____Richard T. Dunbar_____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006129                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061207                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19810212                                |
|DISCHARGE AUTHORITY     |Title 10, USC, Section 1201             |
|DISCHARGE REASON        |Physical Disability, Permanent          |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |135.0200.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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