IN THE CASE OF:	  

		BOARD DATE:	  16 September 2008

		DOCKET NUMBER:  AR20080002658 


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 issued a Notification for Eligibility for Retired Pay at Age 60 (20-Year) Letter.  

2.  The applicant states, in effect, that he has not received credit for his 20 plus years in the Armed Forces, and therefore, he is not eligible to receive retired pay at age 60.  He further states that he now requests that he be issued a 20-Year Letter in order to be eligible for non-regular retirement at age 60.  

3.  The applicant provides the following documents in support of his application:  Chronological Record of Military Service (DARP Form 249-3); Application for Retired Pay Benefits (DD Form 108); Data for Payment of Retired Army Personnel (DA Form 4240); Service and Qualification Record; State of Arkansas Certificate of Service; Office of the Adjutant General Memorandum, dated 23 July 1991; Separation Documents (DD Form 214); and Direct Deposit Sign-Up Form (Form No 190-0501).


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 records show he initially enlisted into the Army National Guard (ARNG) in an enlisted status on 6 November 1947.  He continuously served in an inactive status until being honorably separated in order to accept a commission on 11 April 1957.  On 12 April 1957, he was appointed a second lieutenant (2LT) in the ARNG, and he continuously served in various statuses with the ARNG until being honorably discharged from the ARNG and transferred to the United States Army Reserve (USAR) Retired Reserve, in the rank of captain (CPT), on 15 April 1968.  

3.  The applicant's Official Military Personnel File (OMPF) contains an Office of The Adjutant General (TAG) Letter, dated 5 August 1968.  This document informed the applicant that his records had been reviewed and that it had been determined that he had only completed 18 years, 7 months, and 25 days of creditable service for retirement purposes as of 5 July 1967.  Therefore, he was ineligible for issuance of a Notification of Eligibility for Retired Pay at Age 60 
(20-Year Letter) under the provisions of Chapter 61 of Title 10 of the United States Code (USC).

4.  The applicant's record contains a Chronological Record of Service for Retired Pay (USAAC Form 589), dated 5 August 1968.  This document shows the applicant had completed a total of 18 years, 7 months, and 25 days of creditable service for retirement purposes.  It also showed he had completed a total of 
19 years, 6 months, and 19 days of military service for basic pay purposes.

5.  The applicant's record also contains an USAAC Form 589, dated 2 February 1970.  This document shows that the applicant had obtained a total of 19 years, 7 months, and 25 days of creditable service for retirement purposes, and 
21 years, 6 months, and 19 days of military service for basic pay purposes.

6.  The applicant's OMPF contains a Retention in an Active Status of the USAR letter, dated 4 February 1970, which informed the applicant he was being retained in the USAR to complete 20 years of satisfactory Federal Service or until 5 July 1971, whichever occurred earlier.  It further informed him of his requirement to accrue a minimum of 50 retirement points during a full retirement year to be credited with qualifying year of service for retired pay benefits.  It also contains an Expiration of Maximum Retention Date in Active Reserve Letter with Election Form, dated 8 July 1971, which informed him that he was being removed from an active Reserve status as required by law, and that records showed he had not completed 20 years of qualifying service for non-regular retirement purposes.  

7.  The applicant provides a Chronological Record of Military Service (DARP Form 249-3), dated 11 September 1991, which shows he completed a total of 1,492 creditable points.  

8.  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 age 60 and completed a minimum of 20 years of qualifying service and that subsequent to 1 July 1949, qualifying service is granted only for each year of service an individual earns 50 or more retirement points.

9.  As an exception, in order to support the drawdown of military forces, Section 12731a provided the temporary authority to grant non-regular retirement to members of the Selected Reserve who completed at least 15, but less than 
20 years of qualifying service, during the period beginning on 23 October 1992 and ending on 31 December 2001.  There was no provision of the law that allowed for the retroactive use of this temporary authority for members who were not serving on 23 October 1992.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that he receive credit for 20 plus years in the Armed Forces and that he be issued a 20-Year Letter for non-regular retirement at age 60 was carefully considered.  However, by law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement.  The evidence of record in this case confirms the applicant completed a total of 19 years, 7 months, and 25 days of qualifying service for non-regular retirement between 5 July 1968 and 5 July 1971, the date he was transferred to the Retired Reserve. There is no indication that he was unfairly denied the opportunity to earn retirement points at anytime during this period. 
2.  The evidence of record further confirms that as an exception to policy, the applicant was retained in an active status in the USAR in order to complete 
20 years of satisfactory Federal Service, and properly notified of the requirement to accrue 50 retirement points prior 5 July 1971, to be credited with qualifying year of service for retired pay benefits.  However, there is no indication that he attempted to obtain the required retirement points and he failed to do so during the authorized period of his retention.  As a result, given the applicant's failure to complete the necessary qualifying service for retirement after properly being informed of the requirement and given the opportunity to do so, it would not be appropriate or serve the interest of all those who served in the USAR and faced similar circumstances to grant the requested relief. 

3.  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.  

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
      
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)                                         AR20080002658



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ABCMR Record of Proceedings (cont)                                         AR20080002658


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