RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 April 2007
	DOCKET NUMBER:  AR20060012422 


	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. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. John Slone

Chairperson

Mr. David Haasenritter

Member

Mr. John Heck

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 waiver of the six-year rule for a Reserve retirement due to his involuntary transfer to the Retired Reserve.

2.  The applicant states, in effect, that he was involuntarily transferred to the Retired Reserve and that this transfer prevented him from completing his last six years in a Reserve Component.  He states that he completed four years of the six-year requirement.  He also states that he was advised by the U.S. Army Human Resources Command that the six-year rule had been revoked in November 2005.

3.  In a letter, dated 22 August 2006, the applicant states that upon his release from active duty in 1992 he accepted placement in the active Army Reserve.  However, due to his civilian employment location in Saudi Arabia he was not able to join an active Reserve unit until 1994.  In 1997, he received orders for mandatory removal and was assigned to the Retired Reserve because he had reached the 28-year commissioned service limit.  He states that prior to his placement in the Retired Reserve he submitted a request for an extension to ensure that he met the six-year requirement to be eligible for the 20-Year letter and retirement at age 60.  His request was denied and he was involuntarily transferred to the Retired Reserve.

4.  The applicant provides a Chronological Statement of Retirement Points; orders 177-3, dated 26 June 1997; and a copy of his DD Form 214 (Report of Separation from Active Duty) for the period ending 15 January 1974. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 30 June 1997.  The application submitted in this case is dated 22 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 was commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 1 June 1969.  After having had prior active duty service and inactive duty service, he entered active duty again on 24 January 1981.  He accepted appointment as a Regular Army officer on 1 May 1984.  He was discharged on 29 September 1992 under the Fiscal Year 92 Officer Voluntary Early Transition Program and appointed a Major in the USAR the following day.  He was promoted to lieutenant colonel on 15 October 1993.    

4.  On 30 June 1997, the applicant was assigned to the Retired Reserve due to mandatory removal. 

5.  The applicant’s Chronological Statement of Retirement Points, prepared on 
1 November 2005, shows that he completed 25 years and 2 days of creditable service for non-regular retirement at age 60.  The statement shows that he completed his 20th qualifying year at retirement year ending (RYE) 31 May 1991. The statement also shows that his last three years of qualifying service were in a Reserve Component (RYEs 31 May 1995, 31 May 1996, and 31 May 1997).  During his first full year of USAR service not on active duty (RYE 31 May 1994) he earned 15 retirement points.

6.  In the processing of this case, a staff advisory opinion was obtained from the Supervisor, Retirement and Annuities, U.S. Army Human Resources Command, St. Louis, Missouri.  The opinion denied his request for retired pay.  The opinion pointed out that the applicant lacked the last six (sic) years as a requirement in sections 12731-12737 of Title 10, U.S. Code and that he did not have 
20 qualifying years of service for retired pay. 

7.  A second advisory opinion was obtained from the Chief, Transition and Separations, U.S. Army Human Resources Command, St. Louis, Missouri.  This opinion recommended that the ABCMR approve the applicant’s request for a non-regular retirement.  This opinion points out that the applicant completed his 20th qualifying year on 31 May 1991 and that at that time he was a Regular Army officer.  The law in effect at that time required that to qualify for a non-regular retirement the Soldier must have completed the last eight qualifying years in a Reserve Component.  The applicant, upon leaving the Regular Army in 1992, actively participated in the Army Reserve until 1997 when he was mandatorily removed from an active status by law (28 years of commissioned service).  Congress removed the Reserve Component qualifying year’s requirement in 2005.  It was opined that the applicant honorably served this country and was denied retirement due to a quirk in the law.  The removal by Congress of any 

Reserve Component qualifying requirement for a non-regular retirement is witness to their desire that Soldiers in the applicant’s predicament are not denied entitlements that they earned for their many years of honorable service.    

8.  The advisory opinions were furnished to the applicant for comment.  He did not respond within the given timeframes. 

9.  Title 10, U.S. Code, section 12731 provides that a non-regular service member is entitled, upon application, to retired pay if the person is at least        60 years of age; had performed at least 20 years of qualifying service the last 
six years of qualifying service while a member of a Reserve Component, except that in the case of a person who completed the service requirements before 
5 October 1994, the number of years of such qualifying service under this paragraph shall be eight.  The National Defense Authorization Act of 2005 changed the law, effective 27 April 2005, by removing a minimum Reserve Component service requirement.   

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant completed 25 years and 2 days of creditable service for non-regular retirement at age 60, only his last three years of qualifying service were in a Reserve Component.  Because the applicant completed his 20th qualifying year on 31 May 1991, the law in effect at the time required him to have earned the last eight qualifying years of service in a Reserve Component.   

2.  In 2005, Congress changed the law by removing a minimum Reserve Component service requirement.  Notwithstanding the second advisory opinion’s statement that the current law is witness to Congress’s desire that Soldiers in the applicant’s predicament not be denied entitlement that they earned by their many years of honorable service, Congress did not make this law retroactive.   

3.  Nevertheless, evidence of record shows the applicant completed his 20th qualifying year on 31 May 1991 and following his separation from active duty in 1992 he actively participated in the USAR until he was mandatorily removed from an active status by law in 1997.  

4.  He completed a total of 25 years of qualifying service.  As a matter of equity, it would be appropriate to correct the applicant’s records by redistributing excess retirement points to RYE 31 May 1994.  He would then need correction of his records to show he served an additional four of his last eight qualifying years in a 

Reserve Component.  Therefore, his service in the Regular Army during RYEs 31 May 1990 through 31 May 1993 should be converted to qualifying USAR service.

5.  However, since the applicant is being made eligible for retired pay at age     60 only through action of this Board, it would also be equitable to make his eligibility for that retired pay effective with the date of this Board action.

6.  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.

7.  Records show the applicant should have discovered the alleged injustice now under consideration on 30 June 1997; therefore, the time for the applicant to file a request for correction of any injustice expired on 29 June 2000.  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:

JS_____  __DH____  __JH____  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.  redistributing excess retirement points of the individual concerned to provide him with a qualifying year of service for RYE 31 May 1994;

	b.  converting his service in the Regular Army during RYEs 31 May 1990 through 31 May 1993 to qualifying USAR service; and

	c.  making his eligibility for retired pay effective the date of this Board action and providing him a retired pay application packet.




__John Slone__________
          CHAIRPERSON




INDEX

CASE ID
AR20060012422
SUFFIX

RECON

DATE BOARDED
20070419
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT 
REVIEW AUTHORITY

ISSUES         1.
136.0400
2.

3.

4.

5.

6.