RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 May 2007
	DOCKET NUMBER:  AR20060012661 


	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. G. E. Vandenberg

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Mr. Ronald J. Weaver

Member

Mr. David  W. Tucker

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 he be shown to have been retired from the Army Reserve (USAR) by reason of either completion of 20 qualifying years of service or under any available early separation program criteria.

2.  The applicant states, in effect, that after the prior Board action he was not assigned to a Troop Program Unit (TPU).  When he found a TPU he was advised that his three years grace period had lapsed.  He states that he had advised the Reserve center that he was willing to travel a greater distance to obtain the necessary service but was not offered any positions, assistance or advice.  He did not become aware of potential early retirement options until recently.

3.  The applicant provides copies of his college degree certificate, 27 documents from his military personnel file, 17 pages of retirement related regulations, and Untied States Court of Appeals for the Federal Circuit decision brief (02-5133).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 1 July 1996, the date of his discharge.  The application submitted in this case is dated 26 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 entered active duty, in an enlisted status, on 26 January 1961.  He served on active duty for 5 years, 8 months, and 17 days and was honorably discharged to accept a commission.

4.  The applicant accepted a commission in the USAR on 10 October 1966 and served on active duty until 22 August 1974.  He had a break in service from 23 August 1974 through 15 September 1979 and served in the USAR TPU program from 16 September 1979 through 15 September 1984.  

5.  On 15 September 1984, despite  having 18 years of qualifying service, the applicant was honorably discharged as a two time nonselectee for promotion to major.

6.  He applied to this Board to have his discharge revoked and to be reinstated in the active USAR.  On 15 June 1988 the Board determined that the applicant had been improperly discharged in 1984 in that he had 18 years, 8 months, and 17 days of creditable service.  The Board directed that the applicant be reappointed in the active Reserve in the grade of captain, restored to duty, and given three years to complete his required service for eligibility for retirement at age 60.

7.  On 7 July 1988 the Army Military Personnel Center St. Louis, Missouri notified the applicant that actions had been taken to reappoint him in the grade of captain with the option of participation in the IRR or further assignment to a TPU.  He was advised that upon reappointment he was to be retained in the active Reserve for a period not to exceed three years, or until he completed 20 qualifying years of service.

8.  On 31 August 1988 the applicant was notified by the Army Finance and Accounting Center, Indianapolis, Indiana, that he had been reappointed to the grade of Captain with the option of participation in the IRR with further assignment to a TPU.  An audit of his pay records found no entitlement to monies as a result of the ABCMR's action.

9.  Human Resource Command – St. Louis (formerly the Army Reserve Personnel Center) Orders C- 11-049472, dated 30 November 1988, reassigned the applicant to the USAR Control Group (Reinforcement) effective 14 July 1988.

10.  The applicant served on active duty for training for 14 days in April 1989.  This period of service is not recorded either of the Retirement Points Accounting System (RPAS) statements of record.

11.  The applicant performed one day of inactive duty (without pay) on 1 June 1992.

12.  In July 1991 the applicant attempted to join the Jackson Detachment, 2nd Maneuver Training Command in Jackson, Mississippi.  The official reason this attempt failed is not of record.

13.  The applicant was honorably discharged from the USAR Control Group (Reinforcement) on 1 July 1996 when he reached his mandatory retirement date.
14.  In 2001 the applicant applied for retired pay and was advised that, although he had completed 35 years, 5 months, and 17 days of service only 18 years, 8 months, and 17 days of it was considered to be qualifying for retirement purposes.

15.  A 24 September 2001 RPAS statement shows the applicant was credited with 1 active duty point and 15 membership points for his retirement year (RY) ending 19 September 1998 and only membership points for RYs 1989 through 1996.

16.  The applicant provided several sheets of paper with notations of names and numbers of personnel he contacted in his attempts to return to an active status following the Boards 1988 decision.  Dates on these notes range from November 1988 through 2 January 2003.

17.  The United States Court of Appeals for the Federal Circuit decision brief,  
02-5133, submitted by the applicant, relates to a Navy officer who was granted early retirement under the provisions of the 1993 fiscal year Temporary Early Retirement Authority (TERA).  The court determined that the officer in question did qualify for an early retirement under TERA despite adverse actions pending at the time.

18.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) states retirement points may be earned by USAR soldiers for active duty (AD), or while in an active Reserve status, for active duty for training (ADT), initial active duty for training (IADT), involuntary active duty for training (involuntary ADT), annual training (AT), inactive duty training (IDT), Reserve membership, and other activities specified such as military extension or correspondence courses.  The regulation further notes that Reserve personnel may earn points by performing military functions in a nonpay status.  

19.  Title 10, USC, section 1331 states that retired pay is granted members and former members of the Reserve components after completion of 20 or more years of qualifying service and on attaining age 60.  This pay is based on the highest grade satisfactorily held at any time during an individual's entire period of service, other than in an inactive section of a Reserve component.

20.  Title 10, Subtitle B, Part II, Chapter 367, § 3911 (the governing law for Army Regulation 140-10) was amended by the National Defense Authorization Acts for fiscal years 1993 through 1995 to authorize the Secretary of the Army to implement the Temporary Early Retirement Authority.  This permitted the Army to offer all active regular or selected reserve commissioned officers, with at least 15 but less than 20 years of service, an early retirement.  The period covered was from 23 October 1992 to 1 October 1995.  This provision did not extend to Reserve personnel assigned to the Individual Ready Reserve.

21.  Army Regulation 135–210 (Army National Guard and Army Reserve Order to Active Duty as Individuals for Other Than a Presidential Selected Reserve Call-up, Partial or Full Mobilization) provides that the Selected Army Reserve consists of Reserve Units [including Army National Guard Units] and Individual Mobilization Augmentees (IMAs).

DISCUSSION AND CONCLUSIONS:

1.  The intent of the prior Board action was to make the applicant whole by reinstating him to a active status and allowing him to earn the necessary retirement points to qualify for retirement by what ever means necessary.

2.  The applicant's statement that he attempted to obtain a TPU position, within the original 3 year limit set by the Board, appears to be corroborated by the documentation from the Jackson Detachment, 2nd Maneuver Training Command in Jackson, Mississippi.  These actions did not occur until the very end of the     3-year time frame afforded the applicant.

3.  However, while the applicant may not have been able to locate a TPU to associate with earlier, he still had several options available by which he could have earned the necessary points to attain qualifying years of service.  

4.  While it was the responsibility of the Army to assist the Soldier and counsel him obtaining a position and/or obtaining the retirement credit necessary to complete his service requirements, it was ultimately the applicant's responsibility to ensure he met the requirements to be continued in a status that would lead to completion of the required service for retirement.   

5.  There were no TERA programs in effect either at the time the applicant was restored to duty nor during the three years following his restoration to duty.  Once the applicant was placed in the IRR he no longer qualified for participation under the subsequent TERA programs.  The cited court case is not relative to the applicant's situation.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 July 1996; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 June 1999.  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

__JCR___  _DWT__   ___RJW _  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.




__   Jeffrey C. Redmann___
          CHAIRPERSON


INDEX

CASE ID
AR20060012661
SUFFIX

RECON
 
DATE BOARDED
20070524 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
136
2.

3.

4.

5.

6.