RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 November 2007
	DOCKET NUMBER:  AR20070007204 


	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

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. John Meixell

Chairperson

Ms. Jeanette McCants

Member

Mr. Scott Faught

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, correction of her records to show she earned 20 qualifying years of service so that she can receive retirement benefits at age 60. 

2.  The applicant states, in effect, that she served on active duty from 15 June 1964 to 15 June 1973 then transferred to the Army Reserve as a captain.  She was branch transferred to the Military Police Branch and served as a Mobilization Designee in the Army Reserve until she retired in December 1987 as a major.  

3.  She states, in effect, that she was diagnosed with Acute Mylogenous Leukemia in the fall of 1986.  During the following year she received extensive chemotherapy and a bone-marrow transplant.  She states, in effect, that while she was receiving treatment she was employed by the New Hampshire Department of Correction working part-time and she had graduated from the Academy in August 1986.  For the next two years she sent quarterly doctor's statements as required by Headquarters, United States Army Reserve Personnel and Administration Center (USARPAC).  

4.  She further states, in effect, that she retrieved some material pertaining to her military service from the National Personnel Records Center, but was unable to retrieve information from the Finance Center, Fort Benjamin Harrison, Indiana.  She applied to Retirement Branch, USARPAC for retired pay at age 60 and was denied.  She states that is what prompted her to request correction to her retirement points.

5.  She adds that, since her civilian duties working for the NH Department of Corrections were similar to her military duties, she should be given retirement points for the time she worked at her civilian job

6.  The applicant provides 7 tabulated enclosures that contain information relevant to her case to include an ARPC Form 249-2-E (Chronological Record of Military Service), dated 25 April 2005.

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 that she entered active duty as an enlisted Soldier on 15 June 1964.  She was awarded the military occupational specialty (MOS) 71B (Clerk Typist).  She also served as a 71D (Legal Clerk) until she applied for Officer Candidate School (OCS) in June 1967.  Her date of birth is 3 July 1945.

3.  The applicant was honorably discharged from active duty on 15 June 1967 as an enlisted Soldier after serving 3 years and 1 day.  She immediately entered active duty as a commissioned officer in the rank as second lieutenant on  
16 June 1967.  She was appointed as an officer in the Regular Army in the rank of first lieutenant on 28 May 1970.

4.  She served continuously on active duty in various assignments and was promoted to first lieutenant.  She resigned her commission from the Army and was honorably discharged on 16 June 1973.  She had served a total of 9 years and 1 day of active service.  She was appointed as a Reserve Commissioned Officer in the rank of captain effective 17 June 1973 and was assigned to the U.S. Army Reserve (USAR) Control Group (Reinforcement), St. Louis, Missouri.

5.  On 21 October 1974, the applicant was branch transferred to the Military Police Branch.  During this time she acquired an Associate Degree in Law Enforcement and Criminal Justice as part of enhancing her area of expertise.  Letter Orders Number 07-258115 dated 2 July 1975 shows that she was relieved from the USAR Control Group (Reinforcement) to fill an authorized mobilization designee position in the rank as major effective 26 January 1975.  

6.  A letter from the USAR Components Personnel and Administration Center with the Subject:  Waiver for Retention in the USAR shows that the applicant was approved for a waiver of non-participation for retirement year 14 June 1975.  It further states, for officers with less than 20 years Reserve service creditable for retired pay purposes, a minimum of 27 points for each retirement year is required for retention in an active status.

7.  Her military records show that from 31 January 1983 to 16 May 1986, the applicant worked as a Plant Protection Officer for Newport Army Chemical Storage Facility in Newport, Indiana and as a Correctional Officer at New Hampshire Department of Corrections.  During this period she attended the Correctional Academy and completed related correspondence courses for a total of 160 hours.  Her military records also show from 18 May 1981 to 16 July  
1985 she had a total of 76 days of Annual Training (AT).  The applicant retired and was transferred to the Retired Reserve on 23 December 1987.

8.  Her Chronological Record of Military Service shows that she completed a total of 12 years, 3 months, and 20 days of qualifying service for retired pay at age 60. 

9.  A review of the applicant's records by the Board's staff shows that the Chronological Record of Military Service accurately reflects her military service.

10.  The applicant's medical records do not contain any evidence of her treatment for Acute Mylogenous Leukemia in the fall of 1986.

11.  In the processing of this case, an advisory opinion was obtained from the Human Resources Command (HRC), St. Louis, Missouri.  The HRC stated that in order for the applicant to be eligible for retired pay at age 60, under Title  
10, United States Code, Sections 12731-12737, a Reserve Soldier or former Reserve Soldier must have completed a minimum of 20 qualifying years of service and the last 8 years must have been in a Reserve component.  It further states that since 1 July 1949, a Reserve Soldier must have earned at least  
50 retirement points per year for that service to be creditable for retirement.

12.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service), dated 1 July  
1987, states, in pertinent part, that a reservist must earn a minimum of  
50 retirement points each retirement year to have that credited as qualifying service.  Only Soldiers assigned to an active status in a Reserve Component or individuals inactive Federal service are authorized to earn retirement points credits.

13.  Title 10, United States Code (USC), Chapter 1223 (Retired Pay for Non-Regular Service), Section 12731 (Age and Service Requirements) provides, in pertinent part, that a person is entitled, upon application, to retired pay if the person is age 60 and has performed at least 20 years of qualifying service.

14.  Army Regulation 140-1, Army Reserve Mission, Organization, and Training, prescribes the types of assignments and training for which a Reservist may be awarded retirement points.  These include proper unit assignment or attachment, proper pay category, participation in training assemblies which are properly scheduled by the unit, and participation in types of training assemblies that are authorized by Army Regulations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her retirement points should be corrected to show 20 qualifying years of service at age 60 so that she may receive retirement benefits.

2.  The evidence shows that the applicant has not earned the minimum of 
50 retirement points each year to have the qualifying service to be eligible for retired pay at age 60.  

3.  The applicant has not submitted any documentation to show that she should have been awarded additional retirement points.  Without such documentation, there is no basis in which to grant her additional retirement points.

4.  The applicant’s contention that she should be awarded retirement points for performing her civilian job is not supported by the regulation governing the award of retirement points.  There are no provisions for awarding a reservist retirement points for performing their civilian jobs.

5.  The applicant has not submitted any documentation to substantiate her contention that she was diagnosed with Acute Mylogenous Leukemia.  However, even if she had, it would have no bearing in this case.  Either the applicant has documentation to show she earned additional retirement points or she doesn’t.

6.  It is noted that the applicant requires 8 qualifying years to qualify for retired pay for nonregular service.  She has not submitted any evidence to show that an error of such magnitude occurred in her case.

7.  Therefore, she is not entitled to corrections to her records to show  
20 qualifying years of service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JM____  ___JM __  __SF ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of her service in arms.




______John Meixell________
          CHAIRPERSON




INDEX

CASE ID
AR20070007204
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071129
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
135.00
2.

3.

4.

5.

6.