IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20070019008 


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, in effect, that he be granted sufficient qualifying years of service to qualify for a non-regular retirement at Age 60.

2.  The applicant states, that on 15 November 1984, he was transferred to the Retired Reserve due to being twice non-selected for promotion.  At that time he requested his retirement points and never received them.  In 1998, when he turned 55, he again requested his retirement points and they did not show enough good years for retirement.  He was also informed at that time that he could have gotten the rest of his needed years in an enlisted status, which was the first time he had been informed of the fact.  He goes on to state that he was also informed that due to his age, he could no longer go back into the Reserves (USAR) to complete his time.  He further states that his retirement points are still not properly computed and contends that had he been properly advised at the time that he was short of the required years, he could have still attained the years necessary to qualify for retirement.  Accordingly, he should be granted his full retirement.  

3.  The applicant provides no additional documents with his application. 

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 23 July 1943 and enlisted in the Regular Army on 8 August 1961.  He completed his basic training at Fort Jackson, South Carolina and was transferred to Fort Belvoir, Virginia where he underwent his advanced individual training (AIT) as an engineer equipment repairman.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-5 on 14 October 1966, while he was stationed in Okinawa.

3.  On 1 May 1967, he was honorably discharged for the purpose of accepting an appointment to the rank of warrant officer one (WO1).  He was appointed to the rank of WO1 on 2 May 1967, with a concurrent call to active duty.  He was promoted to the rank of chief warrant officer two (CW2) on 2 May 1968.  

4.  He remained on active duty until 9 March 1970, when he was voluntarily released from active duty (REFRAD) on the expiration of his active duty commitment.  He had served 8 years, 7 months and 1 day of total active service and was transferred to the USAR Control group (Reinforcement).  

5.  On 12 August 1971, a letter was dispatched to the applicant from the Office of the Adjutant General, United States Army Administration Center, St. Louis, Missouri notifying the applicant that he was being removed from active status in the USAR because he had failed to attain the minimum points necessary during a retirement year to be retained in an active status.     

6.  On 1 February 1973, the applicant transferred to a troop program unit (TPU) in Statesville, North Carolina.  He received a qualifying year of service during the retirement year ending (RYE) 9 March 1974.  

7.  For the RYE on 9 March 1975, he was only awarded membership points and did not attain a qualifying year.  

8.  He attained qualifying years of service for the RYE 1976, 1977, 1978 and 1979.  His last RYE (1979) was in the North Carolina Army National Guard (NCARNG).

9.  On 1 May 1979, he was transferred to the Inactive National Guard (INARNG) and remained there, accumulating no retirement points until 30 April 1981, when he was honorably discharged from the NCARNG and was transferred to the USAR Control Group (Reinforcement).

10.  On 1 August 1983, he transferred to a TPU in Marion, Virginia (760th Engineer Company) and attained a qualifying year of service for the RYE ending 30 April 1985, the last qualifying year he attained.

11.  On 25 November 1984, he was transferred to the USAR Control Group (Retired) due to being twice non-selected for promotion to the rank of chief warrant officer three (CW3).

12.  On 18 February 2003, the applicant contacted officials at the Human Resources Command in St. Louis, Missouri (HRC-STL) regarding his retirement eligibility.  He was informed that he needed 20 qualifying years of service in order to be eligible for retirement.  It also appears that the applicant has been coordinating with HRC-STL officials since that time to update his retirement points credits.

13.  In the processing of this case a staff advisory opinion was obtained from the HRC-STL which indicates that after reviewing the applicant’s records it was determined that he had only 14 years, 7 months and 2 days of qualifying service and thus was not eligible to receive retired benefits.

14.  The advisory opinion was provided to the applicant for comment and he responded to the effect that he had been working with HRC-STL to get all of his retirement points, which he still has not received and that he was not credited with drill and summer camp points for the RYE in 1985 and 1986.

15.  A review of the applicant’s records, which appear to be complete, shows no evidence that he was ever issued a 20-year letter.  It is also noted that during the period of 1 September 1973 to 1 September 1974, the applicant served as a unit personnel technician.

16.  Army Regulation 135-180, Qualifying Service for Retired Pay - Nonregular Service, provides, in pertinent part, that a USAR soldier who completes 20 qualifying years of service is eligible to apply for Retired Pay at age 60, provided that the last 8 years were served in the Reserve Components.  A qualifying year of service is one in which the soldier earns at least 50 points during the established retirement year.  Any points less than 50 do not qualify as a qualifying year for retirement purposes.  A soldier must have 20 years of service in which he earned 50 or more points each retirement year in order to be issued a 20-year letter.
    
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 evidence of record clearly shows that the applicant had only 14 years, 7 months and 2 days of creditable service at the time he was transferred to the Retired Reserve due to being twice non-selected for promotion.  Therefore, absent evidence to show that he earned at least 50 points per year for those years or any other years in which he was not credited with the appropriate number of points, the Board finds no basis to grant him points that he did not earn or to issue him a 20-year letter.  

3.  Inasmuch as the applicant has provided no evidence to substantiate his entitlement to such additional retirement point credits, there appears to be no basis to grant him credits to which he is not entitled.  To do so would afford him a benefit not afforded to others in similar circumstances. 

4.  The applicant’s contention that he was not properly advised at the time that he did not have sufficient years of qualifying service to qualify for retirement has been noted and found to lack merit.  It is a well-known fact among Reserve Component Soldiers that until an individual has received a 20-Year Letter, sufficient service for retirement has not been established.  The fact that the applicant waited 15 years to ascertain that he did not have 20 creditable years of service for Retired Pay purposes is not indicative of an error on the part of the Department.

5.  Additionally, the applicant has failed to show through the evidence submitted with his application and the evidence of record that he was improperly advised at any point that he had attained 20 or more qualifying years of service for Retired Pay purposes.  There simply is no evidence in his officials records to show that he was ever improperly advised of the amount of service he had performed or the credit he was given for that service. 





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States in the Armed Forces.  The applicant and all Americans should be justifiably proud of his service in arms.





      ___        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)                                         AR20070019008





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ABCMR Record of Proceedings (cont)                                         AR20070019008



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