RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 6 March 2007
	DOCKET NUMBER:  AR20060012088 


	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

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Scott W. Faught

Member

Mr. Roland S. Venable

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 20 years of creditable service for retirement.

2.  The applicant states, in effect, when he completed his military service in 1984, he understood that he had completed more than 20 years of qualifying service for retired pay at age 60.  He also states, in effect, that this is consistent with the information on the report of separation he received in 1984.  He further states it was not until August 1989, when he contacted the Oregon Army National Guard (ARNG) to inquire about his retired pay, that he learned he did not have the requisite number of qualifying years of service for retirement.  At that time, he was informed he was approximately 2 years short of having sufficient "good" qualifying years for retirement.  The applicant adds that he checked to see if he could enlist to complete the necessary service to qualify for retired pay, but due to his age and present physical condition, he is unable to pass the entrance physical examination to serve the additional time.  The applicant concludes by stating, in effect, "[he] believes he clearly met the 'spirit' of the requirement for retirement pay with compensation, if not the 'letter' of that requirement" and submits that "it is both unjust and inequitable to deny [him] retirement compensation for [his] service in the active service and reserve component."

3.  The applicant provides a copy of an unsigned self-authored affidavit,
2 DD Forms 214 (Report of Separation from the Armed Forces of the United States) with effective dates of 2 June 1952 and 2 June 1955, a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 25 November 1959; and NGB Form 22 (Report of Separation and Record of Service), with an effective date of 3 May 1984.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on
3 May 1984, the date of his discharge from the ARNG.  The application submitted in this case is dated 6 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 service records are not available to the Board for review.  A search conducted by officials at the National Personnel Records Center, St. Louis, Missouri; Headquarters, National Guard Bureau, Arlington, Virginia; and the U.S. Army Interactive Personnel Electronic Records Management System failed to locate the applicant's records.  However, there were sufficient records provided by the applicant for the Board to conduct a fair and impartial review of this case.

4.  In support of his application, the applicant provides copies of 3 DD Forms 214.  These documents show, in pertinent part, that the applicant's date of birth is 21 May 1930.  He enlisted and entered active duty in the U.S. Air Force (USAF) on 3 June 1948.  The applicant served continuously on active duty in the USAF, reenlisting on 3 June 1952 and again on 3 June 1955, and was honorably discharged on 25 November 1959 after completing 11 years, 5 months, and
23 days of total active service.

5.  The applicant also provides a copy of NGB Form 22, with an effective date of 3 May 1984.  This document shows, in pertinent part, that the applicant enlisted in the ARNG on 4 May 1974 and was separated on 3 May 1984 after completing 10 years of service during this period.  Item 10 (Record of Service), Block d (Total Service for Pay) of this document shows that the applicant had completed 21 years, 5 months, and 23 days of total service for pay.  Item 18 (Remarks) of the NGB Form 22 shows, in pertinent part, that the applicant was a member of the Inactive National Guard (ING) from 1 March 1982 through 3 May 1984.

6.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve Component Soldiers.  Chapter 2 (Criteria), paragraph 2-1 (Eligibility), of this Army regulation provides that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have (1) attained age 60; (2) completed a minimum of
20 years of qualifying service; and (3) served the last 8 years of his or her qualifying service as a Reserve Component Soldier.  Service in the Army of the United States, without specification of component, is deemed to be service in a Reserve Component.  Service performed concurrently in a Reserve Component and the Regular Army, Navy, Air Force, Marine Corps, or Coast Guard is not creditable as service in a Reserve Component for determining this period.


7.  Army Regulation 135-180, paragraph 2-3 (Notification of retired pay eligibility), provides under section 1331(d) of Title 10, United States Code, each Reserve Component Soldier who completes the service required under paragraph 2-1 to be eligible for retired pay at age 60 under this regulation will be notified in writing within 1 year after he or she has completed that service.  This notification will be issued by the Commander, U.S. Army Human Resources Command (USA HRC), or Chief, National Guard Bureau (NGB), as applicable, at the time 20 satisfactory years of service is completed.  The notification will be issued to those individuals credited with 20 years of qualifying service prior to discharge or transfer to the Retired Reserve.

8.  Army Regulation 135-180, paragraph 2- 4 (Statement of service and retirement point credit), provides that area commanders and the Commander, USA HRC, will furnish statements of service and retirement point credits when requested by Ready Reserve Soldiers under their jurisdiction.  When local records available in the Reserve units do not conclusively establish the Soldier's creditable service, and completion of 20 years qualifying service, or mandatory removal from active status (other than through elimination action or age) is imminent, the area commanders will request the Commander, USA HRC (Attention:  DARP-PAR) verify the doubtful period(s) of service.  Area commanders will make maximum efforts to locate missing and unaccounted for retirement point records.

9.  Army Regulation 135-180, paragraph 2-9 (Service not creditable as qualifying service), provides, in pertinent part, that service in the Inactive National Guard (ING) is not creditable as qualifying service.  This paragraph also provides that service not creditable as qualifying service includes, in pertinent part, active status in the Ready Reserve, the Standby Reserve, and the Active National Guard after 30 June 1949, when insufficient retirement points are earned for such service to be credited as qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show that he completed 20 years of creditable service and qualified for retired pay at age 60 because the NGB Form 22 he was issued shows that he had completed 21 years, 5 months, and 23 days of total service for pay and he understood that he had sufficient creditable service for retirement.  However, the applicant provides insufficient evidence to support his claim.

2.  The evidence of record shows the applicant completed a total of 11 years,
5 months, and 23 days of active service while serving in the USAF.
3.  The evidence of record also shows that the applicant enlisted in the ARNG and served in an active status from 4 May 1974 through 28 February 1982. However, for reasons that are not clear from available records, on 1 March 1982 the applicant was transferred to the ING (i.e., a status not creditable as qualifying service) and remained assigned to the ING until discharged on 3 May 1984.  

4.  There is no evidence of record, and the applicant fails to provide evidence, that shows he was notified in writing by the Chief, NGB, or Commander, USA HRC, that he had completed 20 satisfactory years of qualifying service at the time of his discharge, nor is there evidence that the applicant was transferred to the Retired Reserve at that time.  Thus, the evidence of record fails to support the applicant's claim that he completed more than 20 satisfactory years of qualifying service for retired pay at age 60.

5.  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 3 May 1984; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 2 May 1987.  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

__JEA __  ___SWF _  __RSV   _  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.




      _James E. Anderholm_____
          CHAIRPERSON




INDEX

CASE ID
AR20060012088
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/06
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19840503
DISCHARGE AUTHORITY
OR ARNG
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
136.0200.0000
2.

3.

4.

5.

6.