IN THE CASE OF:
BOARD DATE: 17 June 2008
DOCKET NUMBER: AR20080004504
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 records to show he was retired from active duty effective 21 April 1991 and that he receive his retired pay and any back pay to which he is entitled.
2. The applicant states that his records are in error because he was serving as an E-5 due to an administrative reduction to fill slots in his unit. He states the regulation that reduced the years for retirement excluded National Guardsmen. He alleges that the exclusion of National Guardsman who served on active duty with sufficient active duty time in service for retirement is a violation of the U.S. Constitution and the Equal Employment Opportunity Commission (EEOC). He was told later that he was too close to retirement in April of 1991 and should have been held on active duty, allowed to submit a retirement request, and await the answer of the retirement request.
3. The applicant provides a copy of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service); his promotion orders to staff sergeant; and his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 20 January 1989.
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 applicants 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 applicants 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 24 September 1954. He enlisted in the Regular Army on 6 October 1972. He was promoted to staff sergeant on 1 March 1979.
3. The applicant continued to serve on active duty until he was discharged on 20 January 1989 in the rank of staff sergeant.
4. The applicant enlisted in the Army National Guard on 21 January 1989 in pay grade E-5. He was ordered to active duty on 30 November 1990 in support of Operation Desert Shield/Desert Storm and was honorably released from active duty on 21 April 1991 at his expiration term of service.
5. He was promoted to staff sergeant, E-6 on 12 December 1993.
6. The applicants notification of eligibility for retired pay at age 60 is dated 13 September 1995.
7. Alabama Army National Guard, Personnel Service Branch, Montgomery, Alabama orders 054-023, dated 23 February 1999, discharged the applicant from the Army National Guard and assigned him to the Retired Reserve effective 7 June 1998. At the time of his discharge, he had completed 25 years, 8 months, and 2 days of total service for pay.
8. Section 4403 of the National Defense Authorization Act for Fiscal Year 1993 (Public Law 102-484), enacted 23 October 1992, as amended, provided for a temporary early retirement authority during the force reduction transition for enlisted personnel on active duty. The purpose of this legislation was to provide the Secretary of Defense with an additional temporary force management tool to effect the drawdown of forces. Section 4403 of Public Law 102-484 amended Section 3914, Title 10, United States Code to allow early retirement of an enlisted member with at least 15 years but less than 20 years of service. Further, this law defined the active force drawdown period as beginning on 23 October 1992 and ending on 1 October 1999.
DISCUSSION AND CONCLUSIONS:
1. The applicant served in the Regular Army from 6 October 1972 through 20 January 1989 for a period of 16 years, 3 months, and 15 days.
2. Records show that the applicant served in the Army National Guard from 21 January 1989 through 7 June 1998.
3. While the applicant was a member of the Army National Guard, he served on active duty from 30 November 1990 through 21 April 1991.
4. It is true that active duty early retirement was not offered to Reserve component Soldiers; however, Public Law 102-484 was not even enacted until 23 October 1992. Retirement under the provisions of the law was not an entitlement. The applicant was a member of the Army National Guard at this time and unfortunately, the provisions of this law did not apply to him.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
xx______ xx______ xx______ 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.
xxxxxxx________________
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) AR20080004504
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ABCMR Record of Proceedings (cont) AR20080004504
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