RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20070014917 


	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.


 

Director

 

Analyst
      The following members, a quorum, were present:


 

Chairperson

 

Member

 

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 military records to show that he is eligible to received retired pay at age 60. 

2.  The applicant states, in effect, that the orders transferring him to the retired reserve cannot be found.  He further states that he does not have a letter authorizing him retired pay at age 60.

3.  The applicant provides copies of his Leave and Earnings Statements, Noncommissioned Officer Evaluation Reports, promotion orders, and his Personnel Qualification Record.

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.  On 4 May 1972, the applicant enlisted in the United Stares Army Reserve, in the Delayed Entry Program.  He entered the Regular Army on 15 May 1972.  He was discharged from active duty on 20 February 1974 due to hardship.  He had completed 1 year, 9 months and 6 days of creditable active duty.

3.  The applicant's Chronological Statement of Retirement Points (ARPC Form 249-2-E) shows that he had a break in service from 21 February 1974 to 
30 August 1981 (7 years, 6 months, and 10 days); that the applicant served in the United States Army National Guard, from 31 August 1981 to 30 August 1984 (3 years); and that the applicant served as a member of the United States Army Reserve from 31 August 1984 until he was transferred to the Retired Reserve effective 24 October 1997.  



4.  Permanent Orders F-009-04, United States Army Reserve Command, dated 
9 January 1996, directed discontinuance of the 1st Battalion, 318th Infantry Regiment, 80th Division effective 15 November 1996.

5.  A Chronological Statement of Retirement Points (ARPC Form 249-2-E) dated 11 February 1997, shows that the applicant had 14 years, 9 months, and 17 days of qualifying service for retirement. 

6.  On 14 September 1997, the applicant was counseled regarding his options in connection with the inactivation of his Reserve unit.  The applicant acknowledged in Addendum C of his Personnel Action that he was aware that if he was not offered a valid assignment within a year he could apply for early qualification for retired pay at age 60, provided he was transferred to the Retired Reserve.  The applicant was also informed that he had 18 years of qualifying service for non-regular retired pay.  He was informed that assignment to another unit was not available.  Accordingly, he elected to apply for early qualification for retired pay and transfer to the Retired Reserves.  On 24 September 1997, the applicant's commander recommended approval of his request.

7.  Orders 296-1, 80th Division, dated 23 October 1997, involuntarily reassigned the applicant from the 1st Battalion, 318th Infantry Regiment (Selected Reserve) to the Retired Reserve effective 23 October 1997, in accordance with the Selected Reserve Transition Program Type XC.  These orders also authorized Transition Assistance Management Program assistance.

8.  ARPC Form 249-2-E, dated 9 April 2008, shows that the applicant had 
15 years, 9 months, and 17 days of qualifying service for retirement and was transferred to the Retired Reserve on 24 October 1997.

9.  On 23 November 2007, the applicant reached his 60th year, having been born on that day in 1947.

10.  The United States Army Reserve Transition Benefit Package provides that individuals who lose their position due to inactivation or reorganization of their unit and who had 15 qualifying years but less than 20 qualifying years of service; who had no authorized position available; and who had elected transfer to the Retired Reserve, qualified for early retirement and Grey Area Benefits.  The loss code was XC. 




11.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows that the applicant's unit was inactivated and he elected transfer to the Retired Reserve.  It further shows that orders were published reassigning him to the Retired Reserve.  

2.  It appears that the applicant's ARPC-249-2-E, at about the time of his transfer to the Retired Reserves incorrectly showed his service as only 14 years, 
7 months, and 17 days of qualifying service for retirement.  This apparently resulted in his not receiving authorization for retired pay at age 60.

3.  Subsequently, this error was corrected to show that he had actually completed 15 years, 9 months, and 17 days of qualifying service for retirement.  Therefore, he should be issued a 15-year letter authorizing him to receive retired pay at age 60 based on his 15 years, 9 months, and 17 days of qualifying service.

BOARD VOTE:

__JLP___  __TSK__  __DWT__  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.  issuing him a 15-letter authorizing retired pay at age 60 based on his 
15 years, 9 months, and 17 days of qualifying service under the Selected Reserve Transition Program based on inactivation of his unit; and

	b.  paying him any monies due him as a result of this correction.






      _______TSK_________
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20070014917



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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