RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 April 2007
      DOCKET NUMBER:  AR20060014373


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Dale E. DeBruler              |     |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 records be corrected to
show he qualified for an early Reserve retirement.

2.  The applicant states that in 1996 he was assigned to the 847th Adjutant
General (AG) Battalion located in Columbus, OH under the command of the
88th Regional Support Command (RSC).  During that timeframe, the 847th AG
Battalion underwent reorganization and his slot as Sergeant Major was
eliminated.  On 22 August 1996, he was assigned to the 5025th General
Support Unit (GSU) in an overstrength position.  At that time, he was
advised by the 88th RSC that he would have one year to find a permanent
slot.  One year passed, but a slot could not be found.

3.  The applicant states that the 88th RSC informed him he was being
assigned to the Retired Reserve effective 13 November 1997.  Realizing he
did not have 20 years of qualifying service for retired pay, he asked if he
would be eligible for some form of compensation.  He was advised by the
88th RSC that since he was being transferred due to no fault of his own he
would be entitled to a prorated form of retired pay.  He had no reason to
doubt the information provided to him, but now he is wondering if he was
misled into being forced into the Retired Reserve.

4.  The applicant provides two reassignment orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 13 November 1997, the date of the orders assigning him to
the Retired Reserve.  The application submitted in this case is dated 27
September 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 born on 6 November 1946.  After having had prior Air
Force service, he enlisted in the U. S. Army Reserve (USAR) on 14 July
1982.  He was promoted to Sergeant Major, E-9 on 15 May 1995 in military
occupational specialty 75Z (Personnel Senior Sergeant).

4.  Effective 16 September 1996, the applicant was transferred from the
847th AG Battalion to the 5025th GSU.

5.  Orders dated 13 November 1997 transferred the applicant to the Retired
Reserve, due to reorganization, effective 31 July 1997.  The authority on
the orders was listed as Selected Reserve Transition Program Type “XC.”  At
that time, he had completed 18 years and 10 months of qualifying service
for a Reserve retirement.

6.  On 12 April 2006, the applicant applied for retired pay.  His
application was denied on 20 September 2006 due to his not having 20 years
of qualifying service for a Reserve retirement.

7.  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; has performed at least 20 years of qualifying
service; and, having completed the service requirement during the period
beginning on            1 October 1994 and ending on 30 September 1999,
shall have performed the last six years of qualifying service while a
member of a reserve component.

8.  Title 10, U.S. Code, section 12731a was the temporary special
retirement qualification authority.  It provided that, during the period 1
October 1991 through 30 September 1999, a member of the Selected Reserve
who completed at least 15, and less than 20, years of qualifying service as
of 1 October 1991 could, upon the request of the member, be transferred to
the Retired Reserve.  The Secretary concerned could limit the applicability
of this section to meet the needs of the Service.

9.  Army policy at the time, highly publicized, was that early retirement
under Selected Reserve Transition Program Type “XC” was authorized to an
individual who was a member of the Selected Reserve during the 12-month
period prior to separation; who lost a valid unit position due to unit
inactivation, reorganization, or relocation; who completed 15, but less
than 20 years of qualifying service; who was issued a 15-year letter by
Transitions and Separations; and, if separated after 5 October 1994, whose
last 6 years of service were in a Reserve Component.  The individual must
have requested assignment to the Retired Reserve with early qualification
for retired pay at age 60 by completing a DA Form 4187 (Personnel Action).
DISCUSSION AND CONCLUSIONS:

1.  The applicant had 18 years and 10 months of qualifying service for a
Reserve retirement when he was transferred to the Retired Reserve due to a
unit reorganization.  He had been in the Selected Reserve for more than 12
months, and more than his last 6 years of qualifying service were in a
Reserve Component.  His Retired Reserve assignment orders indicated he was
eligible for early retirement.

2.  It is difficult to understand how the applicant, an AG Sergeant Major,
could not have known how to apply for early retirement.  The early
retirement program had been in effect for more than 3 years by time he was
assigned to the Retired Reserve and had been highly publicized.
Nevertheless, the applicant did meet the eligibility requirements and it
would now be equitable to show he is eligible for retired pay at age 60.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 November 1997; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on   12 November 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:

__wdp___  __wfc___  __ded___  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.  showing the applicant was eligible to apply for early
qualification for retired pay at age 60, that he so applied prior to being
assigned to the Retired Reserve on 13 November 1997, and that his
application was approved and appropriately processed in a timely manner;

     b.  showing the applicant’s April 2006 application for retired pay was
approved in September 2006; and

     c.  paying to the applicant all due retired pay retroactive to the
date he turned age 60.




                                _William D. Powers__
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060014373                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070426                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |136.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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