RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  05 February 2008
	DOCKET NUMBER:  AR20070012706 


	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. Kenneth L. Wright

Chairperson

Mr. Antonio Uribe

Member

Mr. Ronald D. Gant

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, his records be corrected to show he has the additional time for 20 qualifying years, thereby making him eligible for retirement pay at age 60.  

2.  The applicant states, in effect, that the 361 points recorded on his ARPC Form 249-2-E (Chronological Statement of Retirement Points) should be corrected to show 365 points for the period I June 1967 to 27 May 1968.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a copy of his Chronological Statement of Retirement Points dated 9 June 2007, and DD Form 2656 (Data for Payment of Retired Personnel).

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 initially entered active duty in the Regular Army (RA) 
on 1 June 1965.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He served on active duty until 27 May 1968.  He was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) St. Louis, Missouri after serving 2 years, 11 months, and  
26 days of active service.

3.  His service in the USAR from 28 May 1968 included several years in which he received fewer than 50 points. 

4.  His military service records show that he served in Southwest Asia in support of Operation Desert Storm/Desert Shield during the period 11 November 1990 to 14 December 1991 for a total of 6 months and 27 days of active service.

5.  The applicant’s Chronological Statement of Retirement Points, dated 
9 June 2007, shows the following total retirement points for the retirement year ending (RYE) as indicated:  

a.  RYE 13 December 1991 - 252 points and;

b.  RYE 13 December 1992 – 4 inactive duty points and a total of  
19 points.

6.  In the processing of this case, an advisory opinion, dated 29 October  
2007, was provided by the U.S. Army Human Resources Command (USAHRC), St. Louis, Missouri.  The USAHRC stated that the applicant had applied for retirement twice and was denied, because he did not have 20 qualifying years and the USAHRC does not have the authority to grant additional time not earned.

7.  There is no evidence that the applicant submitted a rebuttal to the advisory opinion.

8.  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.

9.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states the last years of qualifying service need not be the last years of military service, nor do they have to be continuous.

10.  Army Regulation 135-180 states in paragraph 2-3, that a twenty-year letter will be issued to the Reserve Component Soldier within 1 year after they complete 20 years of qualifying service for retirement.  This letter will be issued by the Commander, Army Reserve Personnel Command (ARPERSCOM) (now known as Human Resources Command [HRC], St. Louis) for USAR soldiers.  The letter, once issued, may not be withdrawn or revoked.

DISCUSSION AND CONCLUSIONS:

1.  It is reasonable to conclude that the applicant believed he needed only 4 days to become eligible for retirement and believed that by participating in 4 inactive duty training [drill] periods he would meet the requirement.  However, this overlooked the 50 points per year provision.

2.  In the interest of justice, it would be appropriate to move 31 points from RYE 13 December 1991 (currently 252 points) to RYE 13 December 1992 (currently 19 points) thereby allowing for 13 December 1992 to be a qualifying year and to meet the requirement for 20 qualifying years of service.

3.  Once the 31 points are credited to RYE 13 December 1992, it would be appropriate to issue the applicant a 20 year letter certifying his eligibility to receive nonregular service retirement pay at age 60.

4.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant's SBP status/coverage.  The applicant should be directed to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.

BOARD VOTE:

__KLW__  __AU___  __RDG___  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:


	a.  changing the total creditable retirement points for RYE 13 December 1992 to 221 points instead of 252 points;

	b.  changing the total creditable retirement points for RYE 13 December  
1992 to 50 points instead of 19 points; and

	c.  issuing the applicant a 20 year letter certifying his eligibility to receive nonregular service retirement pay at age 60.




____Kenneth L. Wright____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080205
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.