IN THE CASE OF:	  

		BOARD DATE:	       4 December 2008

		DOCKET NUMBER:  AR20080002257 


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, correction of his military records to show that he competed 20 qualifying years for retired pay.

2.  The applicant states, in effect, that this error is related to his assignment to the Individual Ready Reserve (IRR) prior to his completing 20 years of creditable service.

3.  The applicant provides copies of his Chronological Statement of Retirement Points (ARPC Form 249); Army pay voucher for the month of December 1987; orders for active duty training; and serology medical results.

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's ARPC Form 249-E shows:

   a.  that on 25 July 1974, he enlisted in the Regular Army and served on active duty until his release and transfer to the United States Army Reserve on 20 April 1976;

	b.  that during his retirement year ending on 19 April 1989, he had completed a total of 28 points creditable for retirement;	

   c.  that on 30 October 1996, he was transferred to the Retired Reserve; 

	d.  that he had completed 19 years, 8 months, and 26 days of qualifying service for retirement and had earned 4,634 points creditable for retirement; and

	e.  that his date of birth is 17 January 1948 [attained 60 years of age in 2008].

3.  In the processing of this case, an advisory opinion was obtained from the Retirements and Annuities, Transition and Separations Branch, United States Army Human Resources Command, St. Louis, Missouri.  It stated that the applicant was denied [retired pay] because he had not completed 20 qualifying years of service.  The applicant was released from active duty [as a Reservist] due to non-selection for promotion to major.  He should have been retained [in the Individual Ready Reserve(IRR)] until completion of 20 years service.  It appears that the applicant was not properly advised by his career manager.

4.  On 27 August 2008, the applicant concurred with the advisory opinion.

5.  Sections 12731 through 12740 of Title 10, U.S. Code, authorize retired pay for Reserve component military service.  Under this law, a Reserve Soldier must have attained age 60 and have completed a minimum of 20 “good” qualifying years of service.  The term “good years” is an unofficial term used to mean each one-year period in which 50 or more retirement points are earned and which count as qualifying years of service for retirement benefits at age 60.

6.  Section 1176(b)(2) of Title 10, U.S. Code states that, if on the date prescribed for the involuntary separation (other than for physical disability or for cause) or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause) from an active status of a Reserve enlisted member or officer he is entitled to be credited with at least 19, but less than 20, years of service, he may not be discharged, denied reenlistment or transferred from an active status without his consent before the earlier of the date on which he is entitled to be credited with 20 years of qualifying service or the second anniversary of the date on which he would otherwise be discharged or transferred from an active status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was involuntarily released from active duty due to non-selection for promotion.  He had completed 19 years, 8 months, and 26 days of qualifying service and should have been offered the option to be retained in an active status to complete 20 years for retirement at age 60.  

2.  The record is mute as to whether or not the applicant was counseled at the time of his USAR separation that he did not have the necessary qualifying years to be eligible for a Reserve retirement at age 60.  It is also mute as to whether or not the applicant was offered the opportunity to be retained to complete 
20 qualifying years of service.

3.  Therefore, as a matter of equity, it is now appropriate to redistribute the applicant's Reserve retirement points to add 22 points to his period of service from 20 April 1988 to 19 April 1989, making that a qualifying year for retirement and to show that he completed 20 qualifying years of service.  

4.  The applicant should be placed on the Retired List as of his 60th birthday and receive retired pay accordingly.

BOARD VOTE:

____X___  ___X____  ____X__  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.  redistributing the applicant's Reserve retirement points to add 22 points to his period of service from 20 April 1988 to 19 April 1989, making that a qualifying year for retirement and to show that he completed 20 qualifying years of service; 
	b.  placing the applicant on the Retired List as of his 60th birthday; and 

	c.  upon completion of all necessary administrative actions, paying to the applicant all due retired pay retroactive to the date he turned age 60.





      _______ _   _X______   ___
               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)                                         AR20080002257





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ABCMR Record of Proceedings (cont)                                         AR20080002257



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