RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	20 February 2008  
	DOCKET NUMBER:  AR20070006498 


	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



Analyst

The following members, a quorum, were present:




Chairperson



Member



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, that his record be changed to show 20 years of service from the AGR (Active Guard Reserve) and the Army National Guard.  He would also like to correct this at the Defense Finance & Accounting Service (DFAS).   

2.  The applicant states, in effect, DFAS is showing 15 years of service and he completed 20 years and 10 months for retirement.

3.  The applicant provides his DA Form 2339 (Application for Voluntary Retirement) in support of his application.  He also indicates that he was submitting has NGB Form 22 (Report of Separation and Record of Service) and his 20-Year Letter; however, these documents were not included with his application.

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 service records are not available to the Board for review.  A search conducted by officials at the National Personnel Records Center, St. Louis, Missouri; Headquarters, National Guard Bureau, Arlington, Virginia; and the U.S. Army Interactive Personnel Electronic Records Management System (iPERMS) failed to locate the applicant's records.  However, there were sufficient records provided by the applicant for the Board to conduct a fair and impartial review of this case.

3.  The applicant’s record shows that he initially enlisted in the Regular Army on 13 October 1969 for a period of 3 years.  During his service, he was trained, awarded, and served in military occupational specialty (MOS) 76Q (Special 
Paper Equipment Repairer).  On 18 August 1971, he was honorably discharged after serving 1 year, 10 months, and 6 days of honorable active service.  The highest grade he achieved was pay grade E-4.

4.  On 21 February 1981, the applicant enlisted in the Army National Guard of Mississippi.  He continued to serve in the Army National Guard until he attained pay grade E-7.

5.  On 27 January 1999, the applicant voluntarily elected to be processed for retirement.  He attested that he had been counseled and fully understood the ramifications of his action.  The applicant authenticated his Application for Voluntary Retirement with his signature in block 30 (Statement of Understanding).

6.  The applicant's available Military Personnel Records Jacket (MPRJ) contains a DA Form 2339, dated 27 January 1999, which was completed during his retirement processing.  This document confirms the applicant completed
15 years and 3 days of total active service creditable for retirement, 5 years,
10 months, and 8 days total inactive service creditable for basic pay only, and
20 years, 10 months, and 11 days total service for basic pay purposes.

7.  The applicant’s available military service record contains Orders Number
022-300, published by the State of Mississippi, Military Department, The Adjutant General’s Office, Jackson, Mississippi, dated 5 February 1999.  This order shows the applicant was released from active duty effective 31 July 1999, in the retired rank/pay grade of sergeant first class (SFC)/E-7, and placed on the retirement list effective 1 August 1999.  The orders also show that the retirement was voluntary and that he retired with 15 years and 3 days of creditable service for retirement and 20 years, 10 months, and 11 days for basic pay purposes.    

8.  The DD Form 214 issued to the applicant at the time of his separation for retirement shows, in Item 12c (Net Active Service This Period) that he completed 8 years, 2 months, and 16 days; Item 12d (Total Prior Active Service) shows he completed 6 years, 9 months, and 17 days; and Item 12e (Total Prior Inactive Service) shows he completed 5 years, 10 months, and 8 days for a combined total service for basic pay of 20 years, 10 months, and 11 days.  The applicant authenticated this document with his signature in Item 21 (Signature of Member Being Separated).

9.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve Component Soldiers.  Chapter 2 (Criteria), 
paragraph 2-1 (Eligibility), of this Army regulation provides that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have (1) attained age 60; (2) completed a minimum of
20 years of qualifying service; and (3) served the last 8 years of his or her 
qualifying service as a Reserve Component Soldier.  Service in the Army of the United States, without specification of component, is deemed to be service in a Reserve Component.  Service performed concurrently in a Reserve Component and the Regular Army, Navy, Air Force, Marine Corps, or Coast Guard is not creditable as service in a Reserve Component for determining this period.

10.  Army Regulation 135-180, paragraph 2-3 (Notification of retired pay eligibility), provides under section 1331(d) of Title 10, United States Code, each Reserve Component Soldier who completes the service required under paragraph 2-1 to be eligible for retired pay at age 60 under this regulation will be notified in writing within 1 year after he or she has completed that service.  This notification will be issued by the Commander, U.S. Army Human Resources Command (USA HRC), or Chief, National Guard Bureau (NGB), as applicable, at the time 20 satisfactory years of service is completed.  The notification will be issued to those individuals credited with 20 years of qualifying service prior to discharge or transfer to the Retired Reserve.

11.  Army Regulation 135-180, paragraph 2- 4 (Statement of service and retirement point credit), provides that area commanders and the Commander, USA HRC [United States Army, Human Resources Command], will furnish statements of service and retirement point credits when requested by Ready Reserve Soldiers under their jurisdiction.  When local records available in the Reserve units do not conclusively establish the Soldier's creditable service, and completion of 20 years qualifying service, or mandatory removal from active status (other than through elimination action or age) is imminent, the area commanders will request the Commander, USA HRC (Attention:  DARP-PAR) verify the doubtful period(s) of service.  Area commanders will make maximum efforts to locate missing and unaccounted for retirement point records.

12.  Army Regulation 135-180, paragraph 2-9 (Service not creditable as qualifying service), provides, in pertinent part, that service in the Inactive National Guard (ING) is not creditable as qualifying service.  This paragraph also provides that service not creditable as qualifying service includes, in pertinent part, active status in the Ready Reserve, the Standby Reserve, and the Active National Guard after 30 June 1949, when insufficient retirement points are earned for such service to be credited as qualifying service.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show that he completed 20 years of creditable service and qualified for retired pay at 
age 60 because the NGB Form 22 he was issued shows that he had completed 20 years, 10 months, and 11 days of total service for pay and he understood that he had sufficient creditable service for retirement.  However, the applicant provides insufficient evidence to support his claim.

2.  The evidence of record includes a DA Form 2339 that confirms the applicant completed a total of 15 years and 3 days of active military service, which was used to determine his retired pay percentage; and a total of 20 years, 10 months, and 11 days of military service, which would have been used to establish the basic pay scale (longevity) rate upon which his retired pay would be based.  The military service totals coincide with the totals documented in Item 12 of his final separation document, which he authenticated with his signature on the date of his separation.  In effect, his signature was his confirmation that the information contained on the DD Form 214, to include the military service totals, was correct at the time the document was prepared and issued.  

3.  The applicant has failed to provide any documentation confirming he performed active or inactive military service that is not already accounted for on his DA Form 2339 and DD Form 214.  Further, his available military record is void of any entries or documents that indicate he completed any additional military service that was not already used in establishing his retired pay entitlement.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.  

4.  There is no evidence of record, and the applicant fails to provide evidence, that shows he was notified in writing by the Chief, NGB, or Commander, USA HRC, that he had completed 20 satisfactory years of qualifying service at the time of his discharge.  Thus, the evidence of record fails to support the applicant's claim that he completed more than 20 satisfactory years of qualifying service for retired pay at age 60.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily 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

_EP_____  __MJF___  _PM___  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.




________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.