RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         29 March 2007
      DOCKET NUMBER:  AR20060006612


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Ms. Linda Barker                  |     |Member               |
|     |Mr. Michael Flynn                 |     |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 credited with 20
qualifying years of service for Reserve retirement pay.

2.  The applicant states that he had no break in service between 20 January
1976 and 11 March 1976 and that the dates of service on the statement that
he received are incorrect and should be corrected so that he will be able
to receive his retirement.

3.  The applicant provides in support of his application, a copy of a
Chronological Statement of Retirement Points; a copy of his Leave and
Earnings Statement for the period covering 1 March through 31 March 1976; a
copy of a letter from the United States Army Reserve Personnel Center
(ARPERCEN) dated 8 August 1996, congratulating him on his retirement from
the United States Army Reserve (USAR); and a copy of orders dated 8 August
1996 releasing him from the USAR Control Group (Reinforcement) and
assigning him to the Retired Reserve.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 8 August 1996.  The application submitted in this case is
dated 18 April 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 inducted into the Regular Army (RA) on 28 December
1965 and he successfully completed his training as a cook.  He completed 1
year, 11 months and 16 days of net active service in the RA prior to being
honorably released from active duty on 13 December 1967 and transferred to
the USAR Control Group (Reinforcement) to complete his Reserve obligation.




4.  The applicant reenlisted in the USAR for 4 years on 21 July 1972 where
he remained until he was honorably discharged on 19 January 1976 at the
expiration of his term of service.

5.  The applicant’s records indicate that he had a break in service during
the period covering 20 January 1976 through 11 March 1976.

6.  The applicant enlisted in the South Carolina Army National Guard
(SCARNG) on 12 March 1976.  He remained a member of the SCARNG until he was
honorably discharged on 13 November 1981.  He reenlisted in the USAR for
6 years on 14 November 1981.  He reenlisted in the USAR for 3 years on
3 October 1987.  The applicant reenlisted in the USAR for 6 years on 15
July 1990.

7.  Involuntary reassignment orders were published on 31 October 1991
reassigning the applicant to the USAR Control Group (Reinforcement).

8.  On 8 August 1996, the applicant was released from the USAR Control
Group (Reinforcement) and was assigned to the Retired Reserve, due to his
completion of 20 or more years of Reserve duty.

9.  In a letter dated 8 August 1996, the ARPERCEN congratulated the
applicant on his retirement from the USAR and offered their sincere
appreciation for selfless and honorable service.

10.  The applicant was furnished a Chronological Statement of Retirement
Points on 22 March 2006, indicating that he completed a total of 19 years,
11 months and 16 days of qualifying service for retirement purposes, which
makes him ineligible for a 20-year USAR retirement.  According to his
records, he turned 60 years old on 14 August 2006.

11.  The Chronological Statement of Retirement Points also indicates that
during the retirement year ending (RYE) ending on 19 January 1976, the
applicant was credited with a total of 2 points (2 membership points, 0
active duty points and 0 inactive duty points).  For the RYE on 11 March
1977 and 11 March 1978, he was credited with 75 points each year (15
membership points each year and 48 inactive duty points each year).





12.  Army Regulation 135-180 (Qualifying Service For Retired Pay Non-
regular Service) prescribes the policy and procedures for granting retired
pay benefits at age 60, under Title 10, United States Code, Chapter 67,
sections 1331 to 1337.  This regulation specifies, in pertinent part, that
to be eligible for retired pay an individual must have attained age 60 and
completed a minimum of 20 years of qualifying service and that subsequent
to 1 July 1949, qualifying service is granted only for each year of service
an individual earns 50 or more retirement points.

13.  Army Regulation 140-185 prescribes the types of training and
activities for which retirement points are authorized.  In pertinent parts,
it states that a soldier may be credited with a maximum of 60 points for
inactive duty training (IDT) and membership points annually and one point
for each calendar day he/she serves on annual training or other active
duty.  If a Soldier is separated or removed from an active status during a
retirement year, the Soldier may be credited with a proportionate maximum
number of IDT points for that year as shown in appendix A of this
regulation.  Appendix B of this regulation shows the minimum number of
points required for a partial years for qualifying service.  Appendix C
shows the number of membership points authorized for a partial year.

14.  Army Regulation 135-180 implements statutory authorities governing the
granting of “retired pay” to soldiers and former Reserve components
soldiers.

15.  Sections 12731 through 12740 of Title 10, U.S. Code, authorize retired
pay for Reserve component military service.  Under this law, a Reserve
soldier must complete a minimum of 20 qualifying years of service to be
eligible for retired pay at age 60.  The term “good years” is an unofficial
term used to mean years in which 50 or more retirement points are earned
during each year and which count as qualifying years of service for
retirement benefits at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that the applicant completed over 30
years of military service between his initial entry on active duty on
28 December 1965 and his discharge from the USAR on 8 August 1996.
However, his 1 year, 11 months and16 days of active military service added
to the 18 qualifying years of service for non-regular retirement purposes
he subsequently earned in the USAR, total only 19 years, 11 months, and 16
days of qualifying service for non-regular retirement purposes.



2.  During the 30 years the applicant served in the USAR subsequent to his
release from active duty, he was credited with only 18 qualifying years of
service for Reserve retirement purposes.  However, the record shows he did
earn a total of 1443 retirement points during this period, which well
exceeds the 900 point total he would have received had he earned only the
50 points required in each of these years.

3.  The record also shows that in most of the 18 qualifying years with
which he was credited, the applicant earned more than the 50 points
required to establish a qualifying year for retirement purposes.  However,
for the period of USAR service covering 14 December 1975 through 19 January
1976 (36 days), the applicant was credited with only 2 membership points
and no inactive duty points as a result of his break in service from 20
January 1976 through 11 March 1976.

4.  In accordance with the applicable regulation, the minimum points
required for a portion of a year of qualifying service for retirement for
the 1 month and 5 days that the applicant served from 14 December 1975
through 19 January 1976 is 5 points.  The applicant earned sufficient
inactive duty points during his prior year of service to redistribute 5 of
his inactive duty points from his qualifying year ending 13 December 1975
to the year ending 19 January 1976.  By doing so, he will be credited with
5 inactive duty points and 2 membership points and an additional 1 month
and 5 days of qualifying service for retirement.

5.  The foregoing action would bring his total points creditable for
retirement for the period of service ending 19 January 1976 to 7 points
which would result in a qualifying period of service and 20 years and 21
days of qualifying service for retirement purposes.

6.  In view of the facts of this case, and given the applicant's 30 plus
years of military service, it is appropriate and would serve the interest
of equity and fairness to redistribute 5 inactive duty points the applicant
earned during the RYE on 13 December 1975 to the RYE 19 January 1976.  This
would give him the 7 points necessary to earn an additional qualifying
period of service for retirement purposes and establish his eligibility to
receive non-regular retired pay retroactive to 14 August 2006, the day he
turned 60 years old.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 August 1996; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on


7 August 1999.  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:

___LE___  ___LB __  ___MF __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 5 of the retirement points he earned during the
retirement year ending on 13 December 1975, to the retirement year ending
19 January 1976, thereby giving him the minimum 7 points required for a
qualifying period of service and 20 years and 21 days of qualifying service
for non-regular retirement at age 60; and


      b.  showing that he completed 20 years of qualifying service thereby
making him eligible to apply for non-regular retired pay.

2.  That the Defense Finance and Accounting Service provide the individual
concerned all back pay and allowances due based on his eligibility to
receive non-regular retired pay at age 60 as of 14 August 2006.




                            ______ Lester Echols _______
                                      CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060006612                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070329                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  338  |136.0000/RETIREMENT                     |
|2.  342                 |136.0400/USAR AGE 60                    |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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