RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20080000954 


	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 that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his component as U. S. Army Reserve (USAR) from 5 June 1964 to 11 May 1970 and as Regular Army from 12 May 1970 to 1 February 1980.

2.  The applicant states that his DD Form 214 has no record of his USAR active duty service.  It notes his entire active duty service was as a Regular Army officer.  He served as a USAR officer on active duty until he was sworn in as a Regular Army officer on 12 May 1970.  His request for a Reserve retirement was denied because the DD Form 214 does not mention his USAR service in the remarks block.  A DD Form 214 with such a statement is the only proof of USAR service acceptable to the U. S. Army Human Resources Command – St. Louis (USAHRC – STL) for the purpose of a Reserve retirement.

3.  The applicant provides his appointment letter; a letter, dated 19 December 2007, from USAHRC – STL; his active duty orders; his Regular Army appointment letter and orders; a DA Form 71 (Oath of Office – Military Personnel), dated 12 May 1970; a Chronological Statement of Retirement Points; his DD Form 214 and his discharge orders; and an application for retired pay.

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 appointed a second lieutenant in the USAR on 5 June 1964.  He was ordered to extended active duty effective 31 January 1965.  He was appointed an officer in the Regular Army effective 12 May 1970.

3.  On 22 August 1979, the applicant requested discharge from the Army and indicated he desired appointment in the USAR.  

4.  On 1 February 1980, the applicant was honorably discharged from the Regular Army after completing 15 years and 1 day of creditable active service and a total of 15 years, 7 months, and 27 days of service for pay.  He was appointed a captain in the USAR effective 2 February 1980.

5.  Item 2 (Department, Component and Branch) of the applicant’s DD Form   214 shows his Department as Army, his Component as Regular Army, and his Branch as Ordnance.  Item 18 (Remarks) contains the entry, “NOTHING FOLLOWS.”

6.  The applicant’s Chronological Statement of Retirement Points shows he earned 15 membership points only during retirement years ending (RYEs) 4 June 1981, 4 June 1982, and 4 June 1983.  He earned 19 retirement points
(15 membership and 4 inactive duty training points) during RYE 4 June 1984.  The six RYEs from 4 June 1985 through 4 June 1990 were qualifying years, with an additional 6 months and 17 days of qualifying service completed from 5 June 1990 through 21 December 1990.

7.  The Chronological Statement of Retirement Points shows that the applicant’s entire period of active duty was performed as a member of the Regular Army.

8.  On 21 December 1990, the applicant was released from an active Reserve status and assigned to the Retired Reserve as a result of non-selection for promotion.

9.  On 19 December 2007, in response to an application for retired pay from the applicant, USAHRC – STL informed the applicant that even though he completed 20 years of qualifying service for a Reserve retirement, the last 8 years of that qualifying service was not performed as a member of a Reserve Component.

10.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

11.  The version of Army Regulation 635-5 in effect at the time (and the current version) stated that a DD Form 214 would not be prepared for members leaving Reserve officer status to join a Regular component.  The instructions for completing item 18 in the version in effect at the time (and the current version) did not provide for an entry to record USAR service (or any other component service).
12.  Title 10, U. S. Code, section 12731, at the time of the applicant’s assignment to the Retired Reserve, provided that a non-regular service member was entitled, upon application, to retired pay if the person was at least 60 years of age; had performed at least 20 years of qualifying service; and had performed the last        8 years of qualifying service while a member of a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1.  The applicant appears to have misunderstood the reason USAHRC – STL denied him a Reserve retirement.  

2.  The applicant’s DD Form 214 was prepared correctly.  The DD Form 214 provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  The applicant’s component at the time of his discharge was Regular Army, so his component in item 2 is correctly listed. In addition, there were/are no regulatory provisions for recording USAR service in item 18.

3.  The applicant might have meant that his Chronological Statement of Retirement Points fails to show his initial USAR service.  In that, he would have been correct.  The Statement erroneously identifies his USAR status from         31 January 1965 through 1 February 1980 as a Regular Army status.  However, that error is not the reason the applicant was denied a Reserve retirement.

4.  As USAHRC – STL informed him in its 19 December 2007 letter, the applicant had needed to perform the last 8 years of his qualifying service as a member of a Reserve Component.

5.  The applicant served as a USAR officer from 5 June 1964 through 11 May 1970 (5 years, 9 months, and 7 days).  He served as a Regular Army officer from 12 May 1970 through 1 February 1980 (9 years, 8 months, and 20 days).  He was appointed a USAR officer on 2 February 1980.  He completed his 20th qualifying year on RYE 4 June 1988.  However, on that date only the last 4 of his last 8 years of qualifying service had been performed in a Reserve Component.  He needed to complete an additional 4 years of qualifying service in a Reserve Component.  Unfortunately, he was assigned to the Retired Reserve after completing only an additional 2 years, 6 months, and 17 days.

6.  It is noted that the applicant did not actively participate in the USAR for about 4 years after he was appointed a USAR officer on 2 February 1980.  However, a reasonably prudent officer who was interested in attaining a Reserve retirement could have researched the applicable regulations prior to being reappointed as a USAR officer, discovered what all the requirements were to attain a Reserve retirement, and immediately started working to earn qualifying years.  Again unfortunately, the applicant did not begin to earn qualifying years until it was too late to qualify for a Reserve retirement under the law existing at the time.

7.  Regrettably, there is an insufficient basis on which to grant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x___  __x___  __x___  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.




      __          x   _____
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080000954


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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