RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2008
	DOCKET NUMBER:  AR20070014704 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Mark D. Manning

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. Rowland C. Heflin

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 his records to show that he was entitled to retired pay at age 60.  

2.  The applicant states, in effect, that he was issued a certificate for his 20 years of service; however, he was informed that he had only 19 years and he is requesting an explanation of why.  He thinks that he should have 20 years.  He served on active duty from 1965 to 1971 and in the United States Army Reserve (USAR) from 1974 to 1996. 

3.  The applicant provides a copy of his separation orders and a copy of a retirement certificate in support of his request.

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 he was inducted on 13 July 1965.  His date of birth (DOB) is 15 September 1944.  He was trained as a Light Weapons Infantryman, in military occupational specialty (MOS), 11B.  He was promoted to SP4/E-4 effective 13 July 1966.  

3.  The applicant served until he was honorably released from active duty on 12 July 1967.  He was transferred to the United States Army Reserve (USAR).  He was honorably discharged from the USAR on 11 July 1971.  

4.  After a break in service, he enlisted in the USAR on 11 January 1975.  He was promoted to staff sergeant (SSG/E-6) effective 13 September 1981.


5.  The applicant was honorably released from the USAR Control Group (Reinforcement) effective 22 April 1996, under the provisions of Army Regulation 140-10, paragraph 6-2, for completion of 20 or more years of Reserve duty [sic qualifying service].  He was assigned to the Retired Reserve, in pay grade E-6.  His age at the time of his transfer was approximately 52 years.

6.  The applicant provided a copy of his retirement certificate, dated 22 April 1996, which shows that he was transferred to the Retired Reserve in recognition of his honorable service and continued interest in the defense of our Nation.

7.  The applicant's Summary of Retirement Points shows he had completed 19 years of qualifying service for retirement purposes.  It also shows that he earned 15 membership points during his RYE (retirement year ending) of 10 January 1992, which was less than the required 50 points; therefore this year was not a qualifying year for retirement.  His additional years of service, after 10 January 1992, also show he earned less than 50 points and these years were not qualifying years for retirement.  His Summary of Retirement Points shows he had over 19 years of service in which he accumulated in excess of 50 retirement points per year.  Based on his Summary of Retirement Points, as currently compiled, he was not issued, nor eligible to have been issued, a notification of qualification for retired pay at age 60 (20-Year Letter) prior to his transfer.  

8.  Army Regulation 135-180 prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, United States Code, chapter 67, sections 1331 to 1337.  This regulation specifies, in pertinent part, that to be eligible for retired pay an individual must have attained age 60 and completed a minimum of 20 years of qualifying service, and serve the last 6-years of his or her qualifying service as a Reserve Component Soldier, during the period 5 October 1994 through 31 December 2001, nor do they have to be continuous.  Subsequent to 1 July 1949, qualifying service is granted for each year of service an individual earns 50 or more retirement points.

9.  Army Regulation 135-180 states in paragraph 2-3, that a 20-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 Chief, National Guard Bureau for ARNG Soldiers, or the Commander, US Army Human Resources Command (AHRC), St. Louis, for USAR Soldiers.  The letter, once issued, may not be withdrawn or revoked.  




10.  Army Regulation 140-10, in effect at the time, sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant completed 19 years of qualifying service for retired pay benefits when he was transferred to the Retired Reserve effective 22 April 1996.  The evidence also shows that he failed to earn 50 retirement points or more during his RYE (retirement year ending) of 10 January 1992.  

2.  The applicant is currently 63 years of age.  He is not eligible to return to an active status to earn additional retirement points.  It has been over 11 years since his transfer to the Retired Reserve.  

3.  The applicant’s Summary of Retirement Points shows that he had completed 19 years of qualifying service for retirement purposes.  It is reasonable to believe that the applicant fully intended to complete 20 years of qualifying service for retirement purposes.  It is also reasonable to believe he believed, as indicated in his request to the Board he had enough qualifying years for retirement.  On an unspecified date, he was informed that he only had 19 years qualifying service for retirement purposes.  

4.  The applicant has sufficient excess retirement points which he earned throughout the period of his Reserve service which can, as a matter of equity, be redistributed to his unqualifying RYE of 10 January 1992 to qualify him for retirement and retired pay and other benefits.  This redistribution of retirement points would not involve awarding additional retirement points or result in an entitlement to additional drill pay.

5.  After redistribution of retirement points, a corrected statement of retirement points should be issued to show that he has completed 20 years of qualifying service for retired pay with his entitlement to enroll in the Survivor Benefit Plan (SBP).

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___MDM_  ___JCR_  __RCH___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 redistributing excess retirement points from his prior qualifying years of Reserve service to his RYE of 10 July 1992 and showing this RYE as qualifying for retirement.

2.  That upon completion of the administrative action required by Paragraph 1, above, that AHRC, St. Louis, recalculate the individual’s retirement points and issue him a corrected Summary of Retirement Points and certify his eligibility for non-regular retired benefits with entitlement to enroll in SBP.




_____Mark D. Manning______
          CHAIRPERSON




INDEX

CASE ID
AR20070014704
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080313
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19960422
DISCHARGE AUTHORITY
AR  140-10
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
100
2.

3.

4.

5.

6.