RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 May 2007
	DOCKET NUMBER:  AR20060008542 


	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. Gerard W. Schwartz

Acting Director

Ms. Anita McKim-Spilker

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Eddie L. Smoot

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, his records be corrected to show he completed 20 qualifying years of service for a non-regular retirement and that he be issued a 20-year letter.

2.  The applicant states, in effect, that he received what he understood was notification that he had 20-years of qualifying service; therefore, he cancelled his reenlistment.  He also spoke to the Personnel Branch (sic) who advised him that he was retirement eligible.  He was issued a retirement Identification Card which he further understood was another sign of his retirement eligibility.  Recently, he was notified that his retirement orders were issued in error and that he does not qualify for a non-regular retirement.  He contends that he never would have left the Selected Reserve if he had known he was short of retirement eligibility.

3.  The applicant provides: 

	a.  A self-authored statement dated 11 June 2006.

	b.  Orders C-04-511839, Department of the Army (DA), U.S. Army Reserve Personnel Center (AR-PERCEN), St. Louis, Missouri, dated 6 April 1995, reassigning the applicant to the Retired Reserve.

	c.  DA Form 977 (U.S. Army Retired Reserve Certificate), dated 6 April 1995.

	d.  DA, AR-PERCEN, St. Louis letter addressed to "Dear Retiree," undated. 

	e.  Chief, Transition and Separations Branch, DA, U.S. Army Human Resources Command, St. Louis (HRC-St. Louis), dated 8 May 2006, advising the applicant that he was not qualified for a non-regular retirement.

	f.  Chief, Transition and Separations Branch, DA, U.S. Army Human Resources Command, St. Louis (HRC-St. Louis), dated 6 June 2006, advising the applicant that he is not qualified for a non-regular retirement.

	g.  Retirement Summary Points.

	h.  A copy of his DA Form 2 (U.S. Uniformed Services Identification Card) issued on 25 April 1995.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 6 April 1995, the date he was placed on the Reserve Retired List.  The application submitted in this case is dated 11 June 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 evidence of record shows the applicant was born on 3 September 1946.  After serving for 17 years, 10 months, and 8 days in the Regular Army, he enlisted in the Selected Reserve of the U.S. Army Reserve (USAR) on 22 April 1983, establishing a retirement year ending (RYE) date of 21 April 1984.  His retirement points history shows he earned only 31 points for RYE date 21 April 1984; he earned 82 points for RYE date 21 April 1985; and he earned 81 points for RYE date 21 April 1986. This gave him 2 of the 8 required years of service in the Selected Reserve.  He served as a member of the Selected Reserve until 21 April 1986. 

4.  After 21 April 1986, the applicant did not reenlist and was reassigned to the USAR Control Group (Reinforcement) because he was led to believe that he had completed 20 years of qualifying service for a non-regular retirement.  Beginning with RYE date 21 April 1988, he only earned 15 member points for each subsequent year until RTE ending 21 April 1995 when he was presumably released from the USAR Control Group and placed on the Retired Reserve List.  His Retirement Points Detail has a gap from RYE date 21 April 1986 until it picks up again at the beginning date of 22 April 1987 (RYE date 21 April 1988). Since there is no evidence the applicant was not still assigned to the USAR Control Group, this appears to be an administrative error.

5.  Combined with his active duty service, the applicant's Retirement Points Summary credited him with 19 years, 10 months and 3 days of qualifying service for non-regular retirement and 6831 cumulative retirement points.


6.  On 6 April 1995, the applicant was released from the USAR Control Group (Reinforcement) and placed on the Retired Reserve List.  His discharge order from AR-PERCEN, St. Louis, shows reason as "Completed 20 or more Years Reserve Duty."  He was issued a DA Form 977 (Retired Reserve Certificate), issued a retired ID card, and notified of his requirement to keep AR-PERCEN notified of a change in address.

7.  The official record contained a hand-written DA Form 5018-R (Chronological Record of Military Service) which appears to be the record used to calculate the applicant's retirement points at the time he was presumably retired.  It has the following statement at the bottom "Eligible for Retirement 20 Yr Ltr 930421."

8.  The applicant turned 60 years of age on 3 September 2006.  In May 2006, the applicant queried HRC-St. Louis (formerly called AR-PERCEN) regarding the non-receipt of his non-regular retirement.  On 8 May 2006, HRC-St. Louis informed him by letter that, although he had completed the minimum years of qualifying service, he lacked the additional requirement that his last 8 years of qualifying service be in a Reserve Component.  Given that his Retirement Point Detail shows that he has only 19 years, 10 months and 3 days, it appears that HRC-St. Louis compounded its previous errors by informing the applicant that he had the minimum years of qualifying service, i.e., 20 years.

9.  In a 6 June 2006 letter from HRC-St. Louis, the applicant was informed that he was never issued a 20-year letter, only an order that incorrectly notified him that he had 20 years of service.  He was notified that he could make an appeal to the Army Board for Correction of Military Records if he believed an error or injustice existed in his case.

10.  In a self-authored letter, the applicant contends that he would have reenlisted in 1995 and accepted an assignment to a Selected Reserve unit in Auburn, Washington; however, two days before he reenlisted AR-PERCEN told him that he had 20 qualifying years for retirement.  A week later he contends he received a retirement order and certificate, and was issued a retired ID card.  It was not until May 2006 he was informed that he had been erroneously informed that he met qualifications for a non-regular retirement.  He contends that he relied on AR-PERCEN's incorrect information in his decision not to reenlist and that he has been unduly prejudiced by the situations.  He completed two tours of duty in Vietnam and is the recipient of the Purple Heart.  Given the longevity of his active duty service and his past military record, it indicates that he had every intention of meeting the requirements for retirement.

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

12.  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.  This law further requires that the last 8 years of qualifying service must be in a Reserve Component.  

13.  Army Regulation 135-180 states in paragraph 2-3, that a 20-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 (AR-PERSCOM) 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.  Army Regulations 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized.  In pertinent part, it states that annual or terminal statements of retirement points (1) give a permanent record of the total retirement points a Soldier earns during a retirement year; (2) tell the Soldier whether he or she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status; and (3) give the Soldier an opportunity to request correction of errors in the statement.  Code N indicates the authorization of drill attendance for retirement points only, no pay authorized.

15.  Section 12731(d) of Title 10, U.S. code, states that the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay.  The notice shall be sent, in writing, to the person concerned within one year after the person completes that service.  Section 12738(a) states that after a person is notified that he or she has completed the years of service required for eligibility for retired pay, 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 unless it resulted directly from the fraud or misrepresentation of the person.


DISCUSSION AND CONCLUSIONS:

1.  Although the applicant was not provided with a 20-year letter notifying him that he had met the eligibility requirements for non-regular retirement, his orders transferring him to the Retired Reserve show the reason as "completion of 20 or more years Reserve service."  Further, the Chronological Record of Military Service provided the applicant on 21 April 1993 states that he was eligible for a retirement with a 20-year letter.  There is no evidence that the applicant was ever constructively advised that he needed to serve his last 8 qualifying years in Reserve component.  Given this, any reasonable person would interpret these actions to mean he had fulfilled the requirements for a Reserve retirement.  The applicant was notified that he had met eligibility requirements for a 20 year non-regular retirement and because he relied on the validity of that information, he did not reenlist, thereby unknowingly denying himself the opportunity to fulfill his retirement eligibility requirements.

2.  The applicant was also issued a Retired Reserve identification card without the issuing facility having a 20-year letter to verify his eligibility for retired pay at age 60.  It is understandable why the applicant would have thought he was eligible for retired pay at age 60. 

3.  Based on his available retirement point summaries, it appears that he needs to fulfill two requirements (1) the 20 years of qualifying service (he lacks 1 month and 27 days), and (2) 6 years of which must have been performed in the Selective Reserve (he has two qualifying years). 

4.  It would therefore be equitable to redistribute excess retirement points from one RYE (e.g. RYE 21 April 1985) to RYE 1984 which currently is not a qualifying year."

5.  Further, it would be equitable to award the applicant 35 inactive duty points, for points only, for RYE 21 April 1987, RYE 21 April 1988, RYE 21 April 1989, RYE 21 April 1990 and RYE 21 April 1991, to show he earned his last 8 years of qualifying service in the Selected Reserve.

6.  Based on the foregoing, the applicant's records should be corrected as recommended below.





7.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant's SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp. 

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 6 April 1995; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 5 April 1998.  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:

__lds___  __jlp___  __els___  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:

	a.  Adjusting his Retirement Point Summary by deducting 20 of his
82 earned points for RYE 1985 and adding them to his 31 points earned in RYE 1984, thus giving him 51 points for RYE 1984 and leaving 62 points for RYE 1985.

	b.  Deducting 30 of his 81 earned points for RYE 1986, plus awarding
4 additional inactive duty points only (Code N) for a total of 50 for RYE 1988.


	c.  Adjusting his Retirement Point Summary for RYEs 1987, 1988, 1989, 1990, and 1991 to show a total of 35 inactive duty points only (Code N) and 
15 membership points as applicable, thereby giving him 50 total points and a qualifying year for each of those years in order to satisfy the 8 qualifying years of Selective Reserve service requirement.

	d.  Showing he was eligible for retired pay at age 60.

	e.  Showing he is entitled to all retired pay since 3 September 2006, the date of his 60th birthday.



						Linda D. Simmons
______________________
          CHAIRPERSON


INDEX

CASE ID
AR20060008542
SUFFIX

RECON

DATE BOARDED
20070508
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
135.0200
2.
136.0400
3.

4.

5.

6.