RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	27 March 2008  
	DOCKET NUMBER:  AR20070009073 


	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. Judy Blanchard

Analyst


The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. LaVerne Douglas

Member

Ms. Jeanette R. McCants

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, full retirement benefits and pay.

2.  The applicant states, in effect, that he was called by a recruiter 2 years after being discharged and was told that he was 5 months short of a good year.  He states, that he would not have gotten out of the military with only 5 months left to go.  His enlistment was not completed at the time he received retirement orders.  He tried to get this issue resolved through the Office of the Adjutant General of Virginia and he went through the Governors’ Office and they referred him to the ABCMR.  He would like his retirement to be officially recognized, because he does not feel that he should be obligated to fulfill an additional one year contract since he was released on the terms of the National Guard.     

3.  The applicant provides two self-authored letters; Orders 115-096, assigning him to The Retired Reserve, effective 1 April 2002; Army National Guard Current Annual Statement, dated 20 October 2004; a letter from the Commonwealth of Virginia, Department of Military Affairs, Adjutant General’s Office, Blackstone, Virginia dated 7 June 2005; and a letter from the Commonwealth of Virginia, Department of Veterans Services, Office of the Commissioner, dated
20 July 2007.

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 enlisted in the Navy in the Delayed Entry Program on
28 November 1980.  He entered active duty on 5 October 1981 and was honorably discharged on 4 July 1988 in pay grade E-5.  He served 6 years and
9 months on active duty.  He had a civilian break in service from 5 July 1988 until 12 May 1989.  The applicant served in the United States Navy Reserve from

13 May 1989 until 6 October 1998.  The applicant enlisted and served in the Army National Guard (ARNG) of Virginia from 7 October 1998 until his separation on 6 October 2002.  His military service records show his date of birth is 8 June 1963.

3.  Orders 115-096, dated 23 April 2002, show that the applicant was discharged from the Army National Guard and assigned to the Retired Reserve with an effective date of 1 April 2002.  (Order 115-096 was provided by the applicant, however the order was not found in his official military personnel record).

4.  The applicant submitted a self-authored letter which states that while he was attending a course in Oklahoma in May 2003, his wife told him that a Virginia National Guard Recruiter left a message on their answering machine informing him that he had only 19 years, 7 months and 7 days towards his retirement.  He later informed the recruiter that a mistake had occurred because he has an order from the Adjutant General placing him in the Retired Reserve.  The applicant was again informed that there was a mistake and he would have to reenlist for one full year.  The applicant told the Recruiter that he would have to investigate the matter more before he reenlisted.       

5.  A review of the applicant’s (Army National Guard Annual Statement).  The record of retirement points earned towards retirement show that he was credited with 3386 total retirement points and that he was credited with 19 years, 
7 months and 7 days of creditable service for retirement pay.  The statement provided to the applicant also informed him that he needed one more additional year of creditable service to reach 20 years.  He was provided a chart that displayed the different retirement options available to him.  The applicant’s annual statement finally shows that he did not have sufficient points for a satisfactory retirement year for the last year that he was a member of the Virginia Army National Guard.  Between 13 May 2002 and 6 October 2002, the applicant earned 8 points towards retirement.  

6.  The applicant's military service records contain a NGB 22 (Report of Separation and Record of Service) that shows he was honorably discharged under the provisions of Army National Guard Regulation 600-200 Paragraph 
8-26i on 6 October 2002, for (Expiration Term of Service), he was credited with completing a total of 19 years, 7 months, and 7 days of total military service for retired pay purposes.

7.  A letter from the Adjutant General’s Office, Department of Military Affairs, Fort Pickett, Virginia dated 7 June 2005 responded to a Virginia State Senator’s inquiry concerning the applicant by stating, in effect, that upon review of the 
documents submitted by the applicant it appeared the discharge order was altered to show that the applicant was transferred to the Retired Reserve.  The NGB Form 22 (Report of Separation and Record of Service) does not agree with this order.  The NGB Form 22 shows the applicant was separated due to Expiration Term of Service.  The NGB Form 22 and the applicant’s Retirement Points Accounting Management (RPAM) shows the applicant does not have sufficient points for a satisfactory retirement year for the last year that he was a member of the Virginia Army National Guard.  It appears that the applicant would have to reenlist and perform satisfactorily for one year in order to become eligible for retired pay at age 60.  All Soldiers must earn a minimum of 50 points from all sources in a retirement year to have that year creditable towards verification of 20 years of qualifying service for retired pay.      

8.  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.  Paragraph 1-8 (Establishment of Retirement Year) provides, in pertinent part, that the retirement year once established will not change as long as the Soldier has continuous service in an active status in a Reserve and/or regular component.  When it is determined that the RYE date shown on a DA Form 1383 or any other authorized retirement point credit form is incorrect, a letter or inquiry requesting correction will be submitted to the appropriate area commander or Commander, USA HRC, St. Louis, Missouri.

9.  Army Regulation 135-180, Chapter 2, provides eligibility criteria and, in pertinent part, states that in order to qualify for non-regular retirement; a member must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of his or her qualifying service as a Reserve Component Soldier.  Paragraph 2-8 defines qualifying service and states, in pertinent part, that a Reserve Component Soldier must earn a minimum of
50 retirement points each retirement year (RY) to have that year credited as qualifying service.

10.  Department of Defense (DoD) Financial Management Regulation (FMR), Volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay), Chapter 1 (Basic Pay), paragraph 0101 (Creditable Service), subparagraph 010101 (Service Which is Creditable), provides, in pertinent part, that for most members who enter and serve on active duty without a break in service, the basic pay date is the date the member enters active or inactive service.  If however, there is a break in service, the time between periods of service usually is not included.  This document also states, in pertinent part, that creditable 
service periods include active or inactive service in the Regular service in the Army, Air Force, Navy, Coast Guard, and Marine Corps; Army, Naval, Marine Corps, Air Force, and Coast Guard Reserve; Army of the United States (service without specification of component); Army National Guard; Army National Guard of the United States; National Guard, and National Guard of the United States.  

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his military service records should be corrected to show that he completed 20 years of creditable service for retirement pay purposes; because he does not feel that he should be obligated to fulfill an additional one year contract since he was released on the terms of the National Guard.  

2.  The evidence of record, as documented in the applicant’s Official Military Personnel File (OMPF) and electronic record, shows he served in the Army National Guard of the State of Virginia from 6 October 1998 until he was discharged for expiration term of service on 6 October 2002 with 19 years, 
7 months and 7 days of creditable service for retired pay.  

3.  The applicant’s NGB Form 22 shows he was separated due to Expiration Term of Service.  The NGB Form 22 and the applicant’s Current Annual Statement for retirement points earned towards retirement shows that the applicant accumulated 3386 points for retired pay and 19 years, 7 months and 
7 days of creditable service toward eligibility for retired pay.  The last year (2002) the applicant was a member of the Virginia Army National Guard he did not have sufficient points for a satisfactory retirement year.  

4.  The applicant submitted a copy of Orders 115-096, which shows he was discharged from the National Guard on 2 April 2002 and the order transferred him to the Retired Reserve the following day.  However, Order 115-096 was not found in his Official Military Personnel File (OMPF) or in his electronic record. 


5.  In any event, the applicant’s military service record is accurate and there is no error.  It appears that the applicant would have to reenlist and perform satisfactorily for one year in order to become eligible for retired pay at age 60.  All Soldiers must earn a minimum of 50 points in a retirement year to have that year creditable towards 20 qualifying years of service for retired pay.  

6.  Therefore, in view of all of the foregoing, the applicant is not entitled to correction of his records to show he completed sufficient service to qualify for retirement.  It is noted that the applicant is currently 45 years of age and appears to be eligible to earn the one additional year of service required to qualify for retired pay.

7.  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

_LD_____  ___JM___  __JTM__  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.




_____John T. Meixell______
          CHAIRPERSON