RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2008
	DOCKET NUMBER:  AR20070017083 


	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, a 20-Year Reserve retirement. 

2.  The applicant states, in effect, that he needs to receive credit for his 20th and last year of service to qualify for a 20-Year Reserve retirement.  He contends that he served as Command Sergeant Major for the 389th Engineer Battalion through August 1994 and that he requested an extension to permit him to obtain 20 good years for retirement; however, his request was denied.  He points out that he served as acting Command Sergeant Major for the 1-351/2nd Brigade until April 1995 to earn additional retirement points.  However, he did not receive any retirement points for this period. 

3.  The applicant provides a Direct Deposit Sign-up Form; a DD Form 2656 (Data for Payment of Retired Personnel), dated 15 August 2007; a memorandum, dated 8 June 1994; a request for extension, dated 4 June 1994; a DD Form 108 (Application for Retired Pay Benefits), dated 27 August 2007; a Chronological Statement of Retirement Points, dated 8 June 1999; an undated memorandum; a DA Form 1380 (Record of Individual Performance of Reserve Duty Training), for the period 5-6 November 1994; a DA Form 1380 for the period 1-2 October 1994; Leave and Earnings Statements for the period January 1994 to April 1995; and a letter, dated 14 November 2007, from a Member of Congress.  

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 5 September 1945.  Having prior active service, inactive service, and a break in service, the applicant enlisted in the Army National Guard on 1 May 1977.  On 14 August 1979, he was honorably discharged from the Army National Guard and transferred to the U.S. Army Reserve (USAR).  He was promoted to sergeant major on 4 August 1990.  On 
26 August 1994, the applicant was reassigned from a troop program unit to the USAR Control Group (Reinforcement) for completion of stabilization.  

3.  The applicant provided a U.S. Army Reserve Personnel Command Chronological Statement of Retirement Points, dated 8 June 1999, which shows that he completed 19 years of creditable service for non-regular retirement at age 60.  The statement shows that during retirement year ending (RYE) 30 April 1995 he earned 36 retirement points (7 inactive duty points, 15 membership points, and 14 active duty points).

4.  In support of his claim, the applicant provided a request, dated 4 June 1994, for a three month extension to remain with his unit and attend drills to earn retirement points for his 20th year of service.  He provided a statement from his Battalion Commander at the time in question, dated 8 June 1994, concurring with the applicant’s 4 June 1994 request. 

5.  The applicant provided DA Forms 1380 for the periods 1-2 October 1994 and 5-6 November 1994 which show he earned a total of 8 retirement points.  He also provided an undated statement from the Battalion Executive Officer attesting that the applicant was present for duty at all drills during the period September 1994 through April 1995.  However, there is no evidence which shows the applicant earned any additional inactive or any active duty points during the period December 1994 to April 1995.

6.  It appears the applicant’s 8 inactive duty points were added to the Chronological Statement of Retirement Points updated on 8 February 2008.  This statement shows that during RYE 30 April 1995 he earned 44 retirement points. 

7.  In the processing of this case, a staff advisory opinion was obtained from the Supervisor, Retirement and Annuities, U.S. Army Human Resources Command, St. Louis, Missouri.  The opinion states that a review of the documentation provided by the applicant failed to grant him additional retirement points as cited in Army Regulation 140-185, chapter 2, paragraph 2-4(3).  The maximum points awarded in one calendar day are 2 retirement points.  On 5 October 2007, that office denied the applicant retired pay.  That office could only verify that the applicant completed 19 years of qualifying service.    

8.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  The applicant did not respond within the given timeframe.

9.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized.  Paragraph 2-4(3) of this regulation states, in pertinent part, that a maximum of 2 points may be awarded in one calendar day.  

10.  Sections 12731 through 12738 of Title 10, U.S. Code, authorize retired pay for Reserve component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  The term “good years” is an unofficial term used to mean years in which 50 ore more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s U.S. Army Reserve Personnel Command Chronological Statement of Retirement Points shows he had 19 qualifying years for a Reserve retirement. 

2.  It appears the applicant tried to extend his assignment in 1994 for a period of 3 months to complete 20 years of qualifying service and apparently this request was denied.  He was reassigned to the USAR Control Group (Reinforcement) on 26 August 1994.  However, the applicant provided DA Forms 1380 which show he attended drills in October and November 1994 earning him 8 additional retirement points that may have been the reason his statement of retirement points was later adjusted to show he earned a total of 44 retirement points in his 20th year of service, RYE 30 April 1995.  
    
3.  The applicant provided a statement from the Battalion Executive Officer of his former unit, who stated that the applicant drilled for points during the period September 1994 to April 1995 (although since he was no longer a member of the unit he was not authorized to do so).  Nevertheless, it appears the applicant did provide a service to his former unit.

4.  Therefore, it would be equitable to correct his records to show he completed 20 years of qualifying service for a Reserve retirement by redistributing his retirement points to give him a qualifying year for RYE 30 April 1995.









BOARD VOTE:

XX_____  ___XX___  __XX____  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 redistributing excess retirement points to provide him with a qualifying year of service for RYE ending 30 April 1995.


              __ XX     ____
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20070017083


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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