RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 May 2007
	DOCKET NUMBER:  AR20060015307 


	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:


Ms. Linda Simmons

Chairperson

Mr. Jerome Pionk

Member

Mr. Eddie Smoot

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 classification as “Former Member” be changed to “Retired Reserve.”  

2.  The applicant states, in effect, that when he turned age 60 in 1997 he was issued a DD Form 2 (United States Uniformed Services Identification Card (Reserve Retired)) that had an expiration date of 28 February 2002 on the back.  He contends that when he renewed this card in 2002 it was replaced with a DD Form 2765 and the color was tan.  He states that he questioned the difference in the appearance of the card and that he was assured that it carried all the privileges and benefits of the blue card.  He goes on to state that recently he was denied “Space-A travel” with this tan card, that he was never informed of any differences in the retirement privileges, and that he was informed by the Defense Enrollment Eligibility Reporting System that the difference between the blue and tan card is Ready Reserve and Retired Reserve.  

3.  The applicant provides an ARPC Form 249-3 (Chronological Record of Military Service); a letter, dated 29 March 1976, from Headquarters, 204th Engineer Battalion (CONST) NYARNG; a DD Form 214 (Report of Transfer or Discharge); a DD Form 108 (Application for Retired Pay Benefits), dated 
11 December 1996; a Certificate of Retirement; a letter, dated 13 October 2006, from a Member of Congress; a letter, dated 20 September 2006; an Identification and Privilege Card; three Honorable Discharge Certificates; special orders, dated 7 July 1969; a NGB [National Guard Bureau] Form 22 (Report of Separation and Record of Service); a 20-Year letter; a letter, dated 17 June 1997; and a DD Form 1584 (National Agency Check Request). 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 28 February 2002.  The application submitted in this case is dated 21 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 29 March 1937.  Having prior service in the U.S. Marine Corps, the U.S. Marine Corps Reserve, the Army National Guard, and the U.S. Army Reserve (USAR), the applicant was honorably discharged from the USAR on 27 February 1980.

4.  The applicant was placed on the retired list effective 29 March 1997.  

5.  Paragraph 13.3 of Army Regulation 600-8-14 (Identification Cards for Members of the Uniformed Services, Their Eligible Family Members, and other Eligible Personnel) states that the DD Form 2 will be issued to members of the Retired Reserve (gray area retirees) and former members who have qualified for retired pay at age 60, and Retired Reserve members awaiting pay at age 60 who are eligible for benefits under the Selected Reserve Transition Program.   

6.  Table 18.1 of Army Regulation 600-8-14 states, in pertinent part, that former members having reached age 60 and entitled to receive retired pay will be issued the DD Form 2765.  

7.  Army Regulation 600-8-14 also states, in pertinent part, that a former member is an individual who is eligible to receive retired pay for non-Regular service under Chapter 1223 of 10 U.S. Code, but who has been discharged from the Service and maintains no military affiliation.  These former members are issued the DD Form 2765 and their eligible dependents the DD Form 1173 when the member reaches age 60.  These former members and their eligible dependents are entitled to medical care, commissary, exchange, and morale, welfare, and recreation privileges at age 60 when entitled to retired pay. 

DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant was erroneously issued the DD Form 2 when he was placed on the retired list in 1997.  However, since he was issued a DD Form 2675 in 2002, which is the correct identification card, there is no basis for granting the applicant’s request.   

2.  Records show the applicant should have discovered the alleged error now under consideration on 28 February 2002; therefore, the time for the applicant to file a request for correction of any error expired on 27 February 2005.  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

LS_____  ___JP___  __ES____  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.




____Linda Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR20060015307
SUFFIX

RECON

DATE BOARDED
20070508
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100.0000
2.

3.

4.

5.

6.