RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 December 2007
	DOCKET NUMBER:  AR20070005375 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Kathleen Newman

Chairperson

Ms. Rose M. Lys

Member

Mr. Edward E. Montgomery

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 awarded full retirement and entitlement to retired pay and benefits with completion of 19 years, 6 months, and 10 days of qualifying service. 

2.  The applicant states, in effect, that he was transferred to the Retired Reserve and was told that he met all requirements for retirement.  He later discovered that somehow he was only credited with 19 years, 6 months, and 10 days of qualifying service.  He tried to get back into a TPU (troop program unit) to meet the remaining 5 months and 20 days that he needed.  He was placed in a TPU as a training officer in a Charlotte unit.  After serving 1 year, he received a letter stating he was ineligible after he had served the time.

3.  The applicant provides a copy of his AGUZ Form 249 (Chronological Record of Military Service), dated 9 June 1977, a copy of a letter from ARPERCEN (Army Reserve Personnel Center), dated 23 June 1982, a copy of 1AA Form 511 (Biographical Sketch-Reserve Component Officer), dated 19 April 1982, and a copy of his Honorable Discharge Certificate from the Navy, dated 18 June 1946, in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel has remained silent.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.



2.  The applicant's military records show he was commissioned as a second lieutenant (2LT/O-1) on 23 April 1953, with prior enlisted service in the United States Navy, the Naval Reserve, and the USAR (United States Army Reserve), at the age of 25 years, 8 months, and 29 days.  His date of birth is 25 July 1927.  He was promoted to first lieutenant (1LT/O-2) on 22 April 1956.

3.  The applicant was appointed in the North Carolina Army National Guard (NCARNG) on 2 December 1958, in the rank of 1LT.  He was promoted to captain (CPT/0-3) on 25 May 1962.

4.  On 21 June 1965, having a period of over 20 years of satisfactory service, the applicant requested transfer to the Retired Reserve with an effective date of 1 August 1965.  His request was approved on 24 June 1965.  He was honorably separated on 1 August 1965 and transferred to the Retired Reserve.

5.  On 4 June 1975, the Director, Retired Activities Directorate, ARPERCEN, informed the applicant that they were currently auditing the military records of personnel in the Retired Reserve to verify their eligibility for retired pay under the provisions of Title 10, United States Code, Sections 1331-1337.  His Chronological Record of Military Service showed that he had completed 19 years, 6 months, and 10 days of satisfactory service at the time he was transferred to the Retired Reserve.  ARPERCEN regretted that because he did not have the required 20 years of qualifying service he would not be eligible for military retired pay when he reached age 60 (1987 07 25).

6.  ARPERCEN requested that he carefully review his Chronological Record of Military Service to assure that all service was properly credited.  In this regard, the law specified that only service in an active status was creditable.  Service in an inactive status such as the Citizens Military Training Corps (CMTC) or Reserve Officer Training Corps (ROTC) as well as in the Retired Reserve would not be credited for retirement.  Furthermore, the law required that a minimum of 50 retirement points, including 15 points awarded for membership in an active Reserve Component, must have been earned each retirement year since 1 July 1949 for that year to be credited for retirement.

7.  The applicant was advised that in the event that he believed his records were incorrect, he could provide ARPERCEN with documentary evidence to support his claim for additional service.  He was provided with two possible alternatives for accruing the additional service required for retired pay eligibility.  He was 



informed that he could apply to this Board for relief to have his records changed to reflect 20 years of creditable service for retirement or he could consider transferring to an active Reserve Component to complete the additional service required.

8.  On 4 May 1977, the applicant requested a verification of his service from ARPERCEN.  He requested that he be furnished a Statement of Service, to include retirement points and to indicate if he was qualified for retired pay when he reached age 60.  If he was found qualified, he requested that he be furnished a letter under Title 10, and if not, ARPECEN should indicate the number of years of service he needed to qualify.

9.  The applicant's Chronological Record of Military Service, dated 9 June 1977, shows that he had completed 32 years, 4 months, and 5 days of service for basic pay purposes and 19 years, 6 months, and 10 days of qualifying service for retirement purposes.  He was not issued, nor eligible to have been issued, a notification of qualification for retired pay at age 60 (20-Year Letter) prior to his transfer to the Retired Reserve.

10.  On 6 July 1977, ARPERCEN replied to his request and stated that to be eligible for retired pay at age 60, under Title 10, USC, Sections 1331-1337, a reservist or former reservist must have completed a minimum of 20 qualifying years of service, with the last 8 years in a Reserve Component.  ARPERCEN reiterated what was discussed in the letter dated 4 June 1975.  He was informed that he needed an additional 5 months and 20 days of qualifying service to be eligible to receive retired pay.  Once again, he was provided with alternatives for accruing the additional required service for retired pay eligibility.

11.  On 26 April 1982, at the age of 54 years, 9 months, and 2 days, the applicant wrote a letter to the Secretary of the Army (SA) concerning a request for assignment to a USAR TPU (troop program unit) as a commissioned officer.  The letter is unavailable for review.

12.  On 23 June 1982, the Commanding General (CG), ARPERCEN, replied to the applicant's letter.  The CG stated that he had been transferred to the Retired Reserve on 1 August 1965. As a commissioned officer in the USAR, he must be able to complete 20 years of creditable service for retirement prior to his mandatory removal from an active status.  Age 53 was the mandatory removal age for officers below the grade of colonel.  He was ineligible for transfer to the Ready Reserve as a commissioned officer since he was past age 53.  The CG mentioned an attached request for assignment that was signed by the applicant and the commander of a USAR TPU on 30 November 1981 (This document was unavailable for review).  The CG indicated that he was not authorized transfer from the Retired Reserve to the Ready Reserve and he was not entitled to receive military pay or to earn retirement points.

13.  The CG granted the applicant the authority to enlist in the USAR for a period of 3 years and that assignment could be to the USAR Control Group (Reinforcement) or to a TPU if a vacancy existed.  This enlistment would permit him sufficient time to accrue the required qualifying service for retired pay as a captain.  The CG provided additional information regarding enlistment.

14.  On 8 March 1989, the applicant completed a DD Form 108 (Application for Retied Pay Benefits).

15.  The applicant's records contain a copy of a memorandum from the Chief, Retirement Service, ARPERCEN, dated 29 June 1989.  This letter was in reply to his DD Form 108, 8 March 1989.  It stated that Title 10, United States Code (USC), section 1331-1337, a Reserve Soldier or former Reserve Soldier must have completed a minimum of 20 qualifying years of service.  A further requirement was that the last 8 years of qualifying service must have been performed as a member of the Reserve Component.  An audit of his military records shows that he had completed 19 years, 6 months, and 10 days of qualifying service for retirement as shown on his Chronological Record of Military Service.  He was found ineligible for retired pay benefits under cited law.  He was informed that he could apply to this Board for relief.

16.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), indicates, in pertinent part, that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (a) attained 
age 60; (b) completed a minimum of 20 years of qualifying service; and,             (c) served the last 8-years of his or her qualifying service as a Reserve Component (RC) Soldier.

17.  The same regulation states, in paragraph 2-3, that a 20-Year Letter will be issued to the Reserve Component Soldier within 1 year after they complete 
20 years of qualifying service for retirement.  This letter will be issued by the Chief, National Guard Bureau, for ARNG Soldiers, and the Commander, 
Army Human Resources Command (AHRC)-St. Louis for USAR Soldiers.  The letter, once issued, may not be withdrawn or revoked.  The Soldier may voluntarily elect to transfer to the Retired Reserve or be discharged from the Army.  This regulation also states service, which was performed concurrent in the Regular Army, must be followed by 8 years of qualifying service in a Reserve Component and that when this requirement is met the Soldier will receive a 
20-Year letter.

18.  Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified
and if they so request, will be transferred to the Retired Reserve.

19.  Chapter 6, of the same regulation, pertains to transfer to and from the Retired Reserve.  Paragraph 6-1 of Army Regulation 140-10 pertains to eligibility. Subparagraph 6-1a(2) states that eligible Soldiers must request transfer if they have completed a total of 20 years of active or inactive service in the US Armed Forces.

20.  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.

21.  Sections 12731 through 12739 of Title 10, USC, 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.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.  This law further requires that the last 8 years of qualifying service must in a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant requested transfer to the Retired Reserve with an effective date of 1 August 1965 assuming that he had 20 years of satisfactory service.  His request was approved.

2.  The applicant was honorably separated on 1 August 1965 and was transferred to the Retired Reserve, at the age of 38 years and 6 days.

3.  The evidence shows 10 years later, after an audit by ARPERCEN, that the applicant was ineligible for retired pay at age 60 based on his Chronological Record of Military Service which showed that he had completed only 19 years, 6 months, and 10 days at the time of his transfer to the Retired Reserve.  He was asked to provide additional documentary evidence to support his claim for additional service if any.  He was provided two alternatives for accruing the additional service required for retired pay eligibility.

4.  The applicant completed 32 years, 4 months, and 5 days of total service for basic pay purposes and 19 years, 6 months, and 10 days of qualifying service for retired pay.  He failed to meet the criteria of Title 10, US Code, Section 12731 through 12737, which required that he completed a minimum of 20 qualifying years of service to be eligible for retired pay at age 60 (1987 07 25).  He was not issued, nor eligible to have been issued, a notification of qualification for retired pay at age 60 (20-Year Letter) prior to his assignment to the Retired Reserve.  He is currently 80 years old.

5.  The applicant requested assignment to a TPU, USAR, after the age of 54.  He was informed that age 53 was the mandatory removal age for officers below the grade of colonel.  He was ineligible and not entitled to earn retirement points.

6.  The applicant was granted the authority by the CG, ARPERCEN, to enlist in the USAR for 3 years and that assignment could be to a TPU if a vacancy existed.  This enlistment would permit him time to accrue the required qualifying service for retired pay as a captain.  He was provided additional information regarding enlistment.

7.  The applicant alleges that he was placed in a TPU as a training officer in a Charlotte unit and after serving 1 year, he received a letter stating that he was not eligible after he had served the time.  There is no evidence in the applicant's records, and he has provided none, to support these allegations.

8.  The applicant did not qualify for retirement and has provided no supporting evidence to show that he should be awarded full retirement and entitlement to retired pay and benefits.  He failed to complete 20 years of creditable service for retirement purposes.

9.  Based on the evidence, there is no basis to grant the applicant full retirement or to show that he was entitled to retired pay and benefits at age 60 with completion of 19 years, 6 months, and 10 days of qualifying service.

10.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KN____  __RL____  ___EM__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




_____K A Newman_______
          CHAIRPERSON




INDEX

CASE ID
AR20070005375
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071206
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19650801
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
136
2.

3.

4.

5.

6.