RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 February 2008
	DOCKET NUMBER:  AR20070011054 


	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. Yvonne Foskey

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. Carmen Duncan

Member

Ms. Rea M. Nuppenau

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 she be granted an additional year of service credit in order for her to receive a Notification for Eligibility for 
Non-Regular Retired Pay at Age 60 Letter (20-Year Letter).  

2.  The applicant states, in effect, that in 1998, during her unit's reorganization and downsizing, she was improperly counseled on the options available to her.  She states that based on her completion of 18 years and 9 months of qualifying service, she was informed she was eligible for retired pay at age 60, which would be prorated to years of service and transferred to the Retired Reserve.  However, after receiving her orders, she contacted the Transitions Benefits official for more guidance on the process of submitting an application for retired pay.  She claims this official informed her that at the age of 58 she would receive the necessary application needed to apply for retired pay.  However, the official never mentioned she would receive or would need a 20-Year Letter in order to receive retired pay.  

3.  The applicant states, in effect, that in August 2005, she received her application for retired pay and in April 2006, she submitted the application.  On 17 July 2007, she received a denial to her request for retired pay from the Transition and Separation Branch, United States Army Human Resources Command, St. Louis (HRC-St. Louis), and when she called this office, she was informed that she should never have been transferred to the Retired Reserve.  She was further advised that since she had over 18 years of service and was locked in, she should have been given the chance to complete her 20 years of service.  She further states that had she known this, she would never have agreed to be reassigned to the Retired Reserve and is therefore requesting her records be corrected to grant her 1 additional year of service credit so that she may receive a 20-Year Letter.  

4.  The applicant provides the following documents in support of his application:  Self-Authored Letter; 77th Regional Support Command Permanent Orders (PO) Number (#) 184-5, dated 3 July 1998; HRC-St. Louis Letter, dated 17 July 2007; and a Chronological Statement of Retirement Points (RPAS).


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 records show that on 2 August 1979, she was appointed a Reserve Commissioned Officer.  She continuously served in that status until being transferred to the Retired Reserve, in the rank of Lieutenant Colonel (LTC), on 20 May 1998. 

3.  The applicant's Official Military Personnel File (OMPF) contains a Personnel Action (DA Form 4187), dated 13 April 1998.  This document shows the applicant elected to apply for early qualification for retired pay and to be transferred to the Retired Reserve based on her unit's reorganization/inactivation.

4.  The applicant's OMPF also contains 77th Regional Support Command, Permanent Orders Number 184-5, dated 3 July 1998.  This document reassigned the applicant from the Selected Reserve to the Retired Reserve by reason of unit relocation/inactivation/reorganization with an effective date of 20 May 1998.

5.  The applicant's Official Military Personnel File (OMPF) contains a copy of a Reserve Personnel Accounting System (RPAS) Chronological Statement of Retirement Points, dated 8 November 2007, which shows the applicant completed a total of 19 years of qualifying service for Reserve retirement purposes between 2 August 1979 and 1 August 1998, the date of her transfer to the Retired Reserve.  

6.  In connection with the processing of this case, an advisory opinion was obtained from the Human Resources Command, (HRC), St. Louis Transitions and Separations Branch.  This official stated that based on the applicant's Chronological Statement of Retirement Points, only 19 years of qualifying service for retired pay could be verified and therefore, her request for retired pay was denied.  
7.  Title 10 of the United States Code, section 12731 provides the legal authority for age and service requirements for non-regular retired pay.  It states, in pertinent part, that members are entitled to retired pay when they are at least 
60 years of age and have performed at least 20 years of service.  Section 12731a, in effect at the time of the applicant's transfer to the Retired Reserve, provided Temporary Special Retirement Qualification Authority.  It authorized the granting of non-regular retirement to members who completed at least 15, but less than 20 years of qualifying service, during the period 23 October 1992 through 31 December 2001, under policies established by the Secretary concerned for Soldiers involuntarily separated to support the drawdown of military forces.  The provision of this law was applicable to RC Soldiers impacted by unit downsizing.  The law provided no provisions for granting additional service credit for service not performed. 

8.  Public Law 102-484 provided the Secretary of the Army during the active force drawdown period under Title 10 USC 3914, the Temporary Early Retirement Authority (TERA) for selected military members with more than 15 but less than 20 years of service.  TERA was in effect during the active force drawdown period beginning in October 1992 and ending on 31 December 2001.  An amendment to this law enacted in 1992 provided TERA authority and authorized the Secretary of the Army to apply length of service retirement rules contained in this section of the law to service members regular or reserve with at least 15 but less than 20 years of service.

9.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers.  Paragraph 2-2 outlines the criteria for earning retirement points.  It states, in pertinent part, that retirement points may be earned by USAR Soldiers for active duty (AD), or while in an active Reserve status, for active duty for training (ADT), initial active duty for training (IADT), involuntary active duty for training (involuntary ADT), annual training (AT), inactive duty training (IDT), and Reserve membership.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to be granted an additional year of service credit and to be issued a 20-Year Letter was carefully considered.  However, there is an insufficient evidentiary basis to support granting the requested relief.  The evidence of record confirms the applicant completed only 19 years of qualifying service for non-regular retirement at age 60.  Further, there are no regulatory provisions that allow for granting service credit for service not performed.  

2.  However, TERA provisions of the law in effect at the time of the applicant's transfer to the Retired Reserve provided for granting non-regular retirement at age 60 eligibility to those members of the Reserve who had completed 15 but less than 20 years of qualifying service and who were impacted by unit downsizing in support of the Army drawdown.  TERA provisions were in effect during the period between 23 October 1992 through 31 December 2001.  

3.  The evidence of record confirms the applicant had completed 18 years and 
9 months of qualifying active service at the time of her unit's deactivation.  It further shows that at this time, she completed and submitted a request to be granted early retirement eligibility.  As a result, it is concluded that given that she had completed 15 but less than 20 years of service at the time of her unit's deactivation, she was clearly eligible to be issued a 15-Year Letter under TERA provisions of the law.  Therefore, it would serve the interest of equity and justice to correct her record to show that her request for early retirement eligibility was granted under TERA provisions of the law, and to show she was issued a Notification for Eligibility for Non-Regular Retired Pay at Age 60 Letter (15-Year Letter) at the time of her transfer to the Retired Reserve on 20 May 1998. 

4.  The evidence of record also shows the applicant's date of birth was 13 August 1947, and that she reached age 60 on 13 August 2007.  As a result, her record should also be corrected to show her application for retired pay was approved and that she was entitled to retired pay beginning on her 60th birthday.  She should also be provided all back retired pay due from 13 August 2007.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___JTM _  __CD ___  __RMN__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by 

	a.  showing her application for non-regular retired pay under TERA provisions of the law in effect at the time was approved; 

b.  by showing she was issued a Notification of Eligibility for Non-Regular Retirement at Age 60 (15-Year Letter) on the date of her transfer to the Retired Reserve on 20 May 1998; 

c.  by showing her application for retired pay at age 60 was approved and she was entitled to receive retired pay as of 13 August 2007, upon reaching age 60; and

	d.  by providing her all back retired pay due as a result.  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to granting an additional year of service credit and to the issue of a 20-Year Letter.  




_____John T. Meixell_____
          CHAIRPERSON




INDEX

CASE ID
AR20070011054
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
1998.05.20
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
 . . . . .  
DISCHARGE REASON
Retired Reserve
BOARD DECISION
Grant
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.