RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 December 2006
      DOCKET NUMBER:  AR20060007363


      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. Richard Dunbar                |     |Chairperson          |
|     |Mr. Dale DeBruler                 |     |Member               |
|     |Mr. Larry 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, correction of his records to show he
completed 20 years of qualifying service for retired pay at age 60.

2.  The applicant states that his service records show 20 years of
qualifying service, but he has been overlooked.

3.  The applicant provides a letter from the U.S. Army Reserve Components
Personnel and Administration Center; his DD Form 108 (Application for
Retired Pay Benefits); his Statement of Service; his DD Form 2656 (Data for
Payment of Retired Personnel); his WD AGO Form 53-98 (Military Record and
Report of Separation - Certificate of Service); his DD Form 214 (Report of
Separation from the Armed Forces of the United States) for the period
ending 9 October 1952; his Certification of Military Service for the period
25 November 1940 to 26 October 1942; and his DA AGO Form 1383 (Annual or
Terminal Statement of Retirement Points).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 8 January 1965, the date he transferred to the Retired Reserve.
 The application submitted in this case is dated 20 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 14 January 1921.  He enlisted in the Army
National Guard on 12 September 1939 for a period of three years.  He was
discharged on 26 October 1942.

4.  The applicant was appointed as a Reserve commissioned officer on
27 October 1942 and was ordered to active duty on the same date.  He was
released from active duty on 15 February 1946.  The applicant was
transferred to the U.S. Army Reserve on 16 February 1946 and continued to
serve in the U.S. Army Reserve.

5.  On 23 September 1953, the applicant was appointed as a first lieutenant
in the Army National Guard.  His Federal recognition was withdrawn on 1
March 1955 and he was transferred back to the U.S. Army Reserve on 2 March
1955.  He continued to serve in the U.S. Army Reserve.

6.  He was promoted to major on 13 January 1956.

7.  The applicant’s service records contain an AGPZ Form 249 (Statement of
Service), dated 17 May 1961.  This document shows he completed 14 years,
2 months, and 26 days of qualifying Federal service creditable for
retirement; 6 years, 6 months, and 21 days of other than qualifying Federal
service creditable for basic pay purposes only; and over 20 years total
service for basic pay purposes.

8.  On 8 January 1965, after twice being not selected for promotion, he was
transferred to the Retired Reserve.

9.  He reached age 60 on 14 January 1981.

10.  He apparently requested a retired pay application packet sometime
around 1984.  If he applied then, the application or response to his
application is not available.

11.  The applicant’s personnel records contain a DARP Form 2496 (Statement
of Service), dated 23 April 1986, which shows he completed 24 years and
11 months of service, but does not break that service into qualifying/non-
qualifying years.

12.  The applicant applied for retired pay on 13 June 2005.

13.  In a letter, dated 22 June 2005, 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
stated that the law authorizing retired pay based on service in the Reserve
component does not authorize this pay until all requirements have been
fulfilled.  The letter informed the applicant that he completed only 14
years, 9 months, and 22 days of qualifying service for retired pay.

14.  His Chronological Record of Military Service, dated 22 June 2005,
shows he completed 14 years, 9 months, and 22 days total qualifying service
for retired pay and 41 years, 4 months, and 2 days total service for
longevity pay purposes.

15.  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.  The applicant’s record contains an AGPZ Form 249, dated 17 May 1961,
informing him that he had completed only 14 years, 2 months, and 26 days of
qualifying service creditable for retirement as of that date.  The DARP
Form 2496 only indicated he had 24 years and 11 months of service; it did
not indicate how much qualifying service he had.

2.  The applicant applied for retired pay in June 2005.  At that time, his
service military personnel records were reviewed and it was determined that
he had completed only 14 years, 9 months, and 22 days of qualifying service
for retired pay.

3.  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 retired pay at age 60.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 January 1965; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 7 January 1968.  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

RD______  DD______  LR______  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.




                                  Richard Dunbar________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060007363                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061207                                |
|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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