RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 February 2007
	DOCKET NUMBER:  AR20060006333 


	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

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Mr. Hubert O. Fry, Jr.

Chairperson

Mr. William F. Crain

Member

Mr. Dale E. DeBruler

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 correction of his records to show that he completed 20 years of service and received a "20 Year Letter" for retirement purposes.

2.  The applicant states that he completed 20 years of qualifying service for retirement purposes.

3.  The applicant provides a copy of a "Request for Notification of Retirement Pay Eligibility 20 Year Certification", a Request for 20-Year Letter memorandum, a transmittal of names, and a Summary Points Inquiry in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 15 October 1991, the date that he retired from the United States Army.  The application submitted in this case was received on 5 May 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.  Records show that the applicant was transferred from his unit to the United States Army Reserve Control Group (Retired) on 15 October 1991.

4.  On 29 April 1991, the applicant's commander was notified by Headquarters, First Army that the applicant should be issued a 20-Year Letter for retirement purposes as soon as possible.  This memorandum further stated that the applicant had 19 years, 10 months, and 16 days qualifying service effective 23 August 1990 and should have 20 good years.  A timely response was requested as the applicant would have incurred his 25 maximum years of service on 24 August 1991.

5.  A transmittal document, dated 14 August 1991, with the subject: Request for Issue of Letter of Notification of Eligibility for Retired Pay at Age 60 (Transmittal 91-056) lists the applicant's name among those eligible for a 20-Year Letter.

6.  On 20 August 1991, the applicant's commander was notified by the Deputy Chief of Staff for Personnel, Headquarters First Army that, after a review of his files, it was determined that the applicant had completed the required service under the provisions of Army Regulation 135-180, paragraph 2-1 for issuance of a 20-Year Letter.  

7.  The Summary Points Inquiry submitted by the applicant shows that he completed 20 years, 10 months, and 16 days of creditable service for retirement. The retirement year is shown as 10 July through 9 July.

8.  An advisory opinion was obtained from the supervisor of the Retirements and Annuities section of the US Army Human Resources Command.  

9.  The supervisor of the Retirements and Annuities section recommended that no action be taken on the applicant's request.  It was opined that the applicant's records did not show that he completed 20 qualifying years for retirement purposes and that there is no record of retirement points earned during the RYE 1991.  The opinion concluded that the applicant was not eligible for retirement and that if the applicant had leave and earning statements for 1991 he could send them in with his retirement application for review.

10.  The advisory opinion was provided to the applicant for review and comment. To date, the applicant has not provided a response.

11.  The official Chronological Statement of Retirement Points reflects a break in service from 10 July 1968 through 23 August 1971.  Based on what appears to have been reenlistment on 24 August 1971, the retirement year ending date changed to 23 August.

12.  Section 12732 of Title 10 governs entitlement to retired pay for non-regular service.  Section 12732a (2) states that one point will be credited for each day of active service or full time service under Title 32; one point will be credited for attendance at a drill or period of equivalent instruction; and points at the rate of 15 per year will be credited for membership in a reserve component of an armed force. 






13.  Army Regulation 135-180 states in paragraph 2-3, that a twenty-year letter will be issued to the Reserve Component soldier within 1 year after they complete 20 years of qualifying service for retirement.  This letter will be issued by the Chief, National Guard Bureau for ARNG soldiers, and the Commander, Army Reserve Personnel Command (ARPERSCOM) for USAR Soldiers.  The letter, once issued, may not be withdrawn or revoked.  The Soldier may voluntarily elect to transfer to the Retired Reserve or be discharged from the Army.

14.  Section 12738, Title 10, United States Code (formerly Section 1406,Title 10, United States Code) places limitations on revocation of retired pay.  Specifically, the law states:  “(a) After a person is granted retired pay under this chapter, or notified in accordance with sections 12731(d) of this title that the person has completed the years of service required for eligibility for retired pay under this chapter, the person’s eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service performed as required by section 12731(a)(2) of this title unless it resulted directly from the fraud or misrepresentation of the person.  (b)  The number of years of creditable service upon which retired pay is computed may be adjusted to correct any error, miscalculation, misinformation or administrative determination and when such correction is made the person is entitled to retired pay in accordance with the number of years of creditable service, as corrected, from the date the person is granted retired pay."
70.  Section 3353, Title 10, United States Code in effect at the time of the applicant's appointment in the U.S. Army Reserve governs constructive service credit for advanced education, training or specialized experience.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his records should be corrected to show that he completed 20 years of service and received a "20 Year Letter" for retirement purposes were carefully considered and determined to have merit.

2.  Records clearly show that the applicant's chain of command determined in August 1991 that he was eligible for a 20-Year Letter for retirement purposes and requested the issuance of a 20-Year Letter.

4.  Notwithstanding, the advisory opinion, it is clear that the applicant relied on information provided by his chain of command and made a career decision to leave his unit drill status and transfer to the Retired Reserve.  This error detrimentally impacted the applicant through no fault of his own.  In view of the detrimental reliance in this case, it would be appropriate to transfer sufficient retirement points from his retirement years with excess points to retirement year ending 23 August 1991 to ensure a 50 point year and entitlement for certification for retired pay based on 20 years of qualifying service.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 October 1991; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 October 1994.   The applicant did not file within the 3-year statute of limitations; however, based on the available evidence or argument, it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

__DED__  __WFC__  _HOF ___  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 for 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 by transferring sufficient points from retirement years with excess points to the year ending 23 August 1991 to equal 50 qualifying points and that he be paid all retirement benefits and allowances due as a result of qualifying for retirement.


_Hubert O. Fry, Jr.___
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.