RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  19 July 2007
	DOCKET NUMBER:  AR20060011648 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Robert J. Osborn II

Member

Mr. Michael J. Flynn

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 retirement points be adjusted so he may be authorized retired pay at age 60.

2.  The applicant states, in effect, that he served in the U.S. Navy (USN), the U.S. Army Reserve (USAR), the Army National Guard (ARNG), and the Air National Guard (ANG).  After reviewing his records, there were points not documented that would have given him 20 years to collect retirement pay.  The issue is that when all his points are tallied he is four points short.  He requests a review of his records to locate the missing points from active duty training (ADT) he feels he never got credit for.   

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with the period ending 17 February 1967; a DD Form 214 (Certificate of Release or Discharge from Active Duty), with the period ending 7 January 1987; a Bureau of Naval Personnel letter, dated 29 August 1966; Headquarters, William Beaumont Army Medical Center Orders 83-9, dated 27 May 1987; three Department of the Army Certificates of Training; Headquarters, 122nd U.S. Army Reserve Command Letter of Appreciation, dated 21 May 1988; Headquarters, 94th Army Reserve Command Orders 72-1, dated 
4 April 1994; an undated Request for Correction of Chronological Statement of Retirement Points for USAR Troop Program Unit Soldiers; an undated DA Form 1059 (Service School Academic Evaluation Report); and USAR Personnel Center Orders D-12-504878, dated 12 December 1995. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 12 December 1995.  The application submitted in this case is dated 10 August 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 records show he was born on 7 July 1945.  He enlisted in the USN on 9 April 1963.  He continued to serve until he was honorably released on 17 February 1967.  He was transferred to the U.S. Naval Reserve (USNR) to complete his service obligation and was discharged from the USNR on 8 April 1968.

4. The applicant’s records indicate that he had a break in service during the period 9 April 1969 through 10 December 1974.  He enlisted in the USAR on 
11 December 1974.  He continued to serve in the USAR and the ARNG until he was discharged from the ARNG on 10 December 1976.

5.  The applicant’s records indicate that he had a break in service during the period 11 December 1976 through 19 July 1979.  He enlisted in the ARNG on 
20 July 1979.  He continued to serve in the ARNG, the ANG, and the USAR.  

6.  On 27 July 1988, the applicant enlisted in the USAR for 6 years.  He was transferred to the USAR Control Group (Reinforcement) on 4 April 1994.  

7.  On 12 December 1995, the applicant was honorably discharged from the USAR Control Group (Reinforcement).  

8.  According to the applicant's records, he turned 60 years old on 7 July 2005.

9.  By memorandum dated 13 September 2006, U. S. Army Human Resources Command, St. Louis (USAHRCSTL), Transition and Separations Branch, notified the Army Review Boards Agency, St. Louis that the applicant's retirement points had been reviewed.  It was determined that he had accumulated over 
21 years of service and that only 17 of them were documented as being creditable for retirement as a member of the USAR.  

10.  On 23 May 2007, the Transition and Separations Branch, USAHRCSTL determined that the retirement year ending (RYE) 10 December 1975 was not calculated on the last review of the applicant's retirement points.  His Chronological Statement of Retirement Points (CSRP) was corrected to show he completed a total of 18 years, 9 months, and 20 days of qualifying service for retirement purposes, which made him ineligible for a 20-year USAR retirement.  

11.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-regular Service) prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, United States Code, Chapter 67, sections 1331 to 1337.  This regulation specifies, in pertinent part, that to be eligible for retired pay an 

individual must have attained age 60 and completed a minimum of 20 years of qualifying service and that subsequent to 1 July 1949, qualifying service is granted only for each year of service an individual earns 50 or more retirement points.

12.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized.  In pertinent parts, it states that a Soldier may be credited with a maximum of 60 points for inactive duty training (IDT) and membership points annually and one point for each calendar day he/she serves on annual training or other active duty.  If a Soldier is separated or removed from an active status during a retirement year, the Soldier may be credited with a proportionate maximum number of IDT points for that year as shown in appendix A of this regulation.  Appendix B of this regulation shows the minimum number of points required for a partial years for qualifying service.  Appendix C shows the number of membership points authorized for a partial year.

13.  Sections 12731 through 12740 of Title 10, U.S. 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.  The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.  Section 12731 states that a member must have performed the last six years of qualifying service a member of the in the Reserve Component.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant accumulated over 21 years of service and completed a total of 18 years, 9 months, and 20 days of qualifying service for retirement purposes in the USAR.  It appears the applicant was not aware that he was 1 year, 2 months, and 11 days short of being eligible for retirement.  Because his CSRP at the time showed he had less than 18 years of qualifying service for a reserve retirement it appears he was not aware or informed of his reenlistment options to complete his 20 years of qualifying service for retirement prior to his discharge from the USAR.  It is reasonable to believe that the applicant intended to complete 20 years of qualifying service for retirement purposes.  

2.  During his periods of USAR service covering 20 July 1993 through 19 July 1994, the applicant was credited with 38 points (15 membership points, 13 active duty points and 10 inactive duty points) and during his service covering 20 July 

1995 through 11 December 1995 (4 months and 22 days), he was credited with only 6 points (6 membership points) and no inactive duty points prior to his discharge from the USAR on 12 December 1995.

3.  The applicant earned sufficient inactive duty points during the RYE ending 
19 July 1989 (78 points) to redistribute 12 of his inactive duty points from his qualifying year ending 19 July 1989 to the year ending 19 July 1994.  This would give him the 50 points necessary for an additional qualifying year.  

4.  In accordance with the applicable regulation, the minimum points required for a portion of a year of qualifying service for retirement for the 4 months and 22 days that the applicant served from 20 July 1995 through 11 December 
1995 is 25 points.  The applicant earned sufficient inactive duty points to redistribute 19 of his inactive duty points from his qualifying year ending 
10 December 1975 to the year ending 11 December 1995.  By doing so, he will be credited with 19 inactive duty points and 6 membership points and an additional 4 months and 22 days of qualifying service for retirement. 

5.  The foregoing action would bring his total points creditable for retirement for the period of service ending 19 July 1994 to 50 points and the period of service ending 12 December 1995 to 25 points which would result in a partial qualifying service and 20 years, 2 months, and 2 days of total qualifying service for retirement purposes.  

6.  In view of the facts of this case, and given the applicant's years of military service, it is appropriate and would serve the interest of equity and fairness to redistribute 12 inactive duty points the applicant earned during the RYE 19 July 1989 to the RYE 19 July 1994 and redistribute 19 of his inactive duty points he earned during the RYE 10 December 1975 to the RYE 12 December 1995.  It would also be equitable to show he applied for retired pay to be effective the day he turned 60 years old. 

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 December 1995; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
11 December 1998.  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:

__JTM __  __RJO __  __MJF __  GRANT FULL RELIEF 

________  ________  ________  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 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.  redistributing 12 of the retirement points he earned during the retirement year ending 19 July 1989 to the retirement year ending 19 July 1994, thereby giving him the minimum 50 points for a qualifying period; 

b.  redistributing 19 of the retirement points he earned during the retirement year ending 10 December 1975 (4 months and 22 days) to the retirement year ending 12 December 1995, thereby giving him the minimum 
25 partial points required for a qualifying period of service and 20 years, 
2 months, and 2 days of qualifying service for non-regular retirement at age 60; 

c.  showing that he completed 20 years of qualifying service thereby making him eligible to apply for non-regular retired pay; and  

d.  showing that he applied for retired pay effective the day he turned 
60 years old.

2.  That the Defense Finance and Accounting Service provide the individual concerned all back pay and allowances due based on his eligibility to receive non-regular retired pay at age 60 as of 7 July 2005.




___   John T. Meixell         _
          CHAIRPERSON



INDEX

CASE ID
AR20060011648
SUFFIX

RECON

DATE BOARDED
19 JULY 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT 
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
135.0200.0000
2.

3.

4.

5.

6.