RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 January 2008
	DOCKET NUMBER:  AR20070011602 


	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. James E. Vick

Chairperson

Mr. Thomas M. Ray

Member

Mr. Jeffrey C. Redmann

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 his records be corrected to show he is eligible to received retired pay at age 60.

2.  The applicant states, in effect, that he enlisted into the Regular Army on  
29 March 1965 and served until 28 March 1968.  He served 4 years in the Reserve and then reenlisted into the Regular Army on 20 June 1980 and served until 16 July 1992.  He then enlisted in the Army Reserve and served until 1996.  Therefore, he has 8 years of service in the Army Reserve.  However, he was denied retired pay for non-regular service based upon not serving his last 8 years in a Reserve Component.

3.  The applicant provides a copy of a letter from U.S. Army Human Resources Command (USAHRC) dated 23 March 2007 and a Summary Points Inquiry/Update from the Retirement Points Accounting System.

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 show that he entered active duty on 29 March 1965.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 12B (Combat Engineer).  He continued to serve until he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement), St. Louis, Missouri on 28 March 1968.  He had completed a total of 3 years of active service.  His date of birth is 23 January 1947.

3.  The applicant served as a Reservist, and earned qualifying years of service for Retirement Years Ending (RYE) 22 May 1975, 22 May 1976, 22 May 1977, 22 May 1978, 22 May 1979, and 22 May 1980.  He enlisted into the Regular Army on 20 June 1980 and served as a 76C (Equipment Records and Parts Specialist) in various assignments.  On 16 January 1992, he applied for the Special Separation Benefit under the Enlisted Voluntary Incentive Program.

4.  On 16 July 1992, the applicant was honorably released from active duty under the Fiscal Year 92 Voluntary Early Transition Program and transferred to the USAR Control Group (Individual Ready Reserve) St. Louis, Missouri after serving 12 years and 27 days of active service.

5.  The applicant served as a Reservist, and earned qualifying years of service for RYE 11 October 1994 and 11 October 1995.  On 18 June 1996, the applicant was released from the USAR Control Group and assigned to the Retired Reserve for completion of 20 years or more of Reserve duty.

6.  The USAHRC letter states, in effect, that the last 8 years of qualifying service must be performed as a member of a Reserve Component.  Which means that any time after the first 12 years of qualifying service, regardless of the component, a member must complete additional qualifying years of service as a Reservist.  The applicant lacked the additional qualifying service as a Reserve Soldier to satisfy the requirement of serving the last 8 years of qualifying service in a Reserve Component to be eligible for retired pay at age 60.

7.  The Summary Points Inquiry/Update from the Retirement Points Accounting System shows that after the applicant was honorably discharged from active duty on 16 July 1992, he served only 2 years of qualifying service as a Reserve Soldier.

8.  Title 10, United States Code, Sections 12731-12737, provides that a Reserve Soldier or former Reserve Soldier must have completed a minimum of  
20 qualifying years of service and that 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he is eligible to received retired pay at age 60.

2.  In order to qualify for retired pay for nonregular service, the last 8 years must have been served in a Reserve Component.  The applicant has not submitted any evidence to show he served 8 qualifying years in a Reserve Component after his release from active duty with the Regular Army.  The applicant had 12 years of qualifying service on 22 May 1983.  He had only earned two qualifying years of service in a Reserve component after that date.  Therefore, his is not entitled to correction of his records to show he is eligible for retired pay at age 60.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JEV__  __TMR__  __JCR___  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 his service in arms.




   ___James E. Vick     __
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080122
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.