IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20070015994 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected to reflect that he had 3 qualifying years for retired pay purposes during the years of 1981 through 1984.

2.  The applicant states that his service during the period of 1981 through 1984 was not recorded in his records and he has been denied his retired pay because he had only 17 years of qualifying service instead of 20 qualifying years.

3.  The applicant provides a copy of his Chronological Statement of Retirement Points, a copy of a letter from the Human Resources Command (HRC) to his congressional representative, a copy of a letter from his congressional representative advising him to apply to the Board and a notification from the HRC advising him that he had not properly completed his retirement packet.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board correct the applicant’s records to show that he completed 20 qualifying years of service for retired pay purposes and to grant him his non-regular retirement. 

2.  Counsel states that the Board should favorably consider the applicant’s request because of an administrative error on the part of the Army that resulted in the omission of the last 3 qualifying years of the applicant’s service from his records and on the basis of compassion in light of the applicant’s 22 years of service to the military.  She goes on to state that at the time the applicant was discharged from the Reserves (USAR) it was with the understanding that he was eligible for Retired pay.  At that time he was given retirement orders and informed that prior to reaching age 60, he would receive a retirement packet, which he did and returned, only to be informed that he did not have enough qualifying years of service for retirement.   

3.  Counsel provides a three page explanation of her position. 

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 was born on 3 June 1944 and enlisted in the Regular Army on 14 December 1962.  He continued to serve through a series of continuous reenlistments and was promoted to the pay grade of E-6 on 30 September 1968. He served one overseas tour in Alaska and two short tours in Korea. 

3.  He was barred from reenlistment and on 3 February 1975 he was honorably discharged on the expiration of his term of service.  He had served 12 years, 1 month and 20 days of total active service. 

4.  On 23 April 1975, he enlisted in the USAR for a period of 1 year.  He reenlisted on 23 April 1976 for a period of 3 years and on 23 April 1979, he reenlisted for a period of 6 years.  

5.  On 31 January 1981, the applicant was relieved from his assignment to the 404th Civil Affairs Company in Trenton, New Jersey due to his employment or business interfering with attendance and was transferred to the USAR Control Group (Reinforcement).  He was discharged from the USAR on 22 April 1985 due to the expiration of his term of service. 

6.  On 5 March 2004, the applicant contacted officials at the HRC to inquire on the procedures for requesting Retired Pay, obtaining a 20-year letter and enrollment in the Survivor Benefit Program (SBP).

7.  On 6 October 2004, the applicant’s Application for Retired Pay Benefits (DD Form 108) was returned to the applicant from the HRC as being incomplete.  

8.  On 9 August 2006, the applicant contacted officials at the HRC to inquire as to how he could get his retirement points updated so he could qualify for retired pay because his application had been returned as unqualified.  He was advised to request copies of his leave and earnings statements from the Defense Finance and Accounting Service (DFAS) if he believed that he was entitled to more service credit.  He was provided the address to DFAS at that time.

9.  On 18 August 2006, he again contacted HRC officials to again request the address to DFAS.

10.  On 12 September 2007, in response to an inquiry from the applicant’s congressional representative, Officials at the HRC responded to the inquiry by informing the applicant’s representative that the applicant had only attained 17 years of qualifying service, which consisted of a year in which he had earned 50 or more retirement points per qualifying year.  Accordingly, he was not entitled to a retirement from the Army.

11.  A review of the applicant’s chronological statement of retirement points (ARPC Form 249-2-E) shows that the last year the applicant had a qualifying year for retired pay purposes was the retirement year ending (RYE) on 22 April 1980.  He had 17 qualifying years for retirement at that time.  Additionally, there is no record of the applicant ever having been issued a 20-year letter.

12.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) 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 the age of 60 and completed a minimum of 20 years of qualifying service and that subsequent to 1 July 1949, qualifying service is granted for each year of service that an individual earns 50 or more retirement points.
     
DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement. 

2.  The applicant’s contention that he was assured that he had 20 qualifying years of service at the time he was discharged has been noted and found to lack merit.  The applicant was never issued a 20-year letter and his last year of qualifying service ended on the RYE 22 April 1980.  

3.  Furthermore, the applicant was transferred to the USAR Control Group (Reinforcement) on  31 January 1981 and even at that time he had not served for 20 years in any capacity.  He initially enlisted in the Regular Army on 14 December 1962 and had a break in service after his discharge from the Regular Army.   

4.  After the applicant was transferred to the USAR Control Group (Reinforcement) it appears that he did nothing to accumulate points (other than the gratuitous 15 membership points) while he was in the control group.

5.  The applicant’s contention that he should have been granted qualifying years of service for the last 3 years in the USAR has been noted; however, he has failed to show through the evidence submitted and the evidence of record that he earned more points than are depicted in his records.

6.  Therefore, in the absence of evidence to show that he earned at least 35 points per year more than is indicated in his records for the last 3 years of his service, there appears to be no basis to grant him service that he did not perform.  To do so would afford him a benefit that he did not earn and would amount to a benefit that is not afforded to others in similar circumstances.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

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.



      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20070015994





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ABCMR Record of Proceedings (cont)                                         AR20070015994



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