RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 May 2007
	DOCKET NUMBER:  AR20060011247 


	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.


X
	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 he be issued a Notification for Eligibility for Non-Regular Retired Pay at Age 60 Letter (15-Year Letter).  

2.  The applicant states, in effect, that he is requesting a 15-Year Letter from the United States Army Reserve (USAR) for compassionate reasons.  

3.  The applicant provides the following documents in support of his application:  Chronological Record of Military Service; Copies of Identification Cards (Military and Veterans Affairs); Department of Veterans Affairs (VA) Letter, dated 8 May 2006; Disposition Board Proceedings for Officers (WD AGO Form 8-118); and Clinical Abstract.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 25 October 1963, the date of his transfer to the Retired Reserve.  The application submitted in this case is dated 26 July 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 record shows he was appointed a second lieutenant in the Army of the United States (AUS) and entered active duty on 15 April 1944.  He was promoted to first lieutenant on 13 December 1945, and he continued to serve on active duty until 22 November 1946, at which time he was honorably released from active duty (REFRAD) and transferred to the USAR.  The separation document (DD Form 214) he was issued at the time shows he completed a total of 2 years, 7 months and 8 days of active military service as of the date of his separation from active duty.  

4.  On 23 November 1946, the applicant was appointed a first lieutenant in the USAR and he continued to serve in an active Reserve status in various capacities until being transferred to the Retired Reserve on 25 October 1963.  

5.  The applicant requested transfer to the Retired Reserve on 16 October 1963, after having been notified that he had failed to earn the minimum points required for retention.  He was subsequently transferred from the USAR Control Group Reinforcement to the Retired Reserve, effective 25 October 1963.  His record is void of any medical records or documents that indicate he was medically unable to continue his USAR service at that time. 

6.  On 3 January 1974, the applicant requested to be transferred from the Retired Reserve to the Ready Reserve.  On 29 January 1974, he was informed that he had passed his mandatory removal date (MRD) from the Ready Reserve, which was 13 April 1972.  Therefore he was no longer authorized to transfer to the Ready Reserve.  Although he was ineligible to return to an active status as a commissioned officer, he was informed he could apply for enlistment in the USAR or Army National Guard (ARNG) to earn the necessary points for 
non-regular retirement.  His Official Military Personnel File (OMPF) is void of any documents showing that he ever attempted to pursue this option, or that he was denied enlistment in an enlisted status.  

7.  A Statement of Service (AGUZ Form 249), dated 25 January 1974, contained in the applicant's OMPF confirms he continuously served in an active status in the AUS and USAR from 19 April 1944 through 25 October 1963, and in the Retired Reserve through the date of the statement of service, and that during this period, he completed a total of 16 years, 2 months, and 12 days of qualifying service for non-regular retirement.  

8.  Title 10 of the United States Code, Section 12731 (10 USC 12731) provides the legal age and service requirements for age and service for Reserve non-regular retirement.  It states, in pertinent part, that a member is eligible to receive retired pay at age 60 if they have completed 20 qualifying years of service for retirement.  

9.  As an exception, in order to support the drawdown of military forces, Section 12731a provided the temporary authority to grant non-regular retirement to members of the Selected Reserve who completed at least 15, but less than 
20 years of qualifying service, during the period beginning on 23 October 1992 and ending on 31 December 2001.  There was no provision of the law that allowed for the retroactive use of this temporary authority for members who were not serving on 23 October 1992.  


10.  Section 12731b provides a special rule for members with physical disabilities not Incurred in the line of duty. It states, in pertinent part, that in the case of a member of the Selected Reserve of a RC who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes.  This special provision of the law is applicable only to members who are medically disqualified for continued served in a RC.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to be issued a 15-Year letter in order to be eligible to receive non-regular retired pay for compassionate reasons was carefully considered.  However, there is an insufficient evidentiary basis to support granting the requested relief.  

2.  By law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement.  An exception and legal authority was provided to provide non-regular retirement to members who completed at least 15, but less than 20, years of qualifying service between 23 October 1992 and 31 December 2001.  However, these were temporary provisions implemented to support the drawdown of military forces during this period.  The law provided no retroactive provisions for members who were not serving on 23 October 1992.  The law also provides special provisions that allow members who complete at least 15, but less than 20, years of qualifying service to qualify for non-regular retirement if they are medically disqualified from continued service.  

3.  The evidence of record in this case confirms the applicant completed a total of 16 years, 2 months, and 12 days of qualifying service for non-regular retirement between 19 April 1944 and his transfer to the Retired Reserve on 25 October 1963.  There is no indication that he was ever unfairly denied the opportunity to earn retirement points at anytime during this period, or that he suffered from a medical condition that prevented him from serving.  

4.  The evidence of record further confirms that the applicant was notified that although he could no longer return to an active status as a commissioned officer he could apply for enlistment in the Army Reserve or National Guard to earn additional retirement points.  However, there is no indication that he attempted to enlist or was denied enlistment.  

5.  In view of the fact of this case, it would not be appropriate or serve the interest of all those who served in the USAR and faced similar circumstances to grant the requested relief.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 25 October 1963.  Therefore, the time for him to file a request for correction of any error or injustice expired on 24 October 1966.  He 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

__X __  __X __  __X_  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.




_____X____
          CHAIRPERSON




INDEX

CASE ID
AR20060011247
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/05/24
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1963/10/25
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON
Transferred Retired Reserve
BOARD DECISION
Deny
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.

2.

3.

4.

5.

6.