IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080007299 


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 his records be corrected to show he qualifies for a Reserve retirement in the rank of Captain, O-3.

2.  The applicant states that he was enlisted, then he was an O-3 from 22 August 1973 until 2 October 1984, and then he became a Chief Warrant Officer Two (CW2).  During his break in service, between 22 August 1973 and 4 August 1978, he attended classes on the weekend put on by a Major for well over two years.  Also, during the time period between 5 August 1990 and 3 January 1997, he completed numerous correspondence courses that apparently were not in the record.

3.  The applicant states that his total length of service is 18 years, 3 months, and 29 days with a point total of 3416, which is 3 1/2 times the number of points for retirement; but regardless, the classes he attended during the break in service and the correspondence courses he completed should more than complete the missing 1 year, 8 months, and 1 day.  He does not remember the Major’s name, but he knows that he was doing that for retirement.

4.  The applicant states that after getting out of the Army National Guard he was still a member of the inactive Reserve, and as far as he knows he still is.  He has not received any discharge since getting out of the active Guard.

5.  The applicant states that he received a package on 1 September 2005 indicating he was qualified for retirement and he needed to sign papers.  That 

indicated he had qualified to retire and, with that, he did not contest any of the information.  He talked to the U. S. Army Human Resources Command – St. Louis (USAHRC – STL) three times in 2007 and it was confirmed that when he turned 60 he would receive benefits.  

6.  The applicant provides a letter, dated 26 February 2008, from the Army Board for Correction of Military Records (ABCMR); two sets of appointment orders, one dated 7 September 1978 and one dated 2 October 1984; and a Chronological Statement of Retirement Points.

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 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 5 October 1947.  He enlisted in the Regular Army on 24 April 1967.  He was honorably discharged on 25 August 1968 to accept an appointment as a warrant officer.

3.  On 26 August 1968, the applicant entered active duty as a warrant officer.  He was honorably discharged on 29 June 1970 to accept an appointment as a commissioned officer.

4.  On 30 June 1970, the applicant entered active duty as a First Lieutenant.  He was promoted to Captain on 30 June 1971.

5.  On 21 August 1973, the applicant was honorably released from active duty and transferred to the U. S. Army Reserve.

6.  On 10 April 1975, the applicant was honorably discharged from the U. S. Army Reserve.


7.  On 5 August 1978, the applicant accepted appointment in the Army National Guard in the rank and grade of Captain, O-3.  

8.  On 6 September 1984, the applicant was honorably discharged from the Army National Guard to accept an appointment in the Army National Guard in the rank and grade of CW2, W-2.

9.  On 9 April 1990, the applicant was honorably discharged from the Army National Guard at his request and transferred to the U. S. Army Reserve Control Group (Reinforcement). 

10.  The applicant’s records contained an Army National Guard Current Annual Statement, prepared on 22 May 1990, showing he completed 18 years and         3 days of creditable service for retired pay as of 9 April 1990.  This statement shows he earned membership points only during the period 22 August 1973 through 10 April 1975.

11.  The applicant provided a Chronological Statement of Retirement Points, dated 2 October 2007, that shows he earned 15 membership points only during retirement year ending (RYE) 4 August 1991; 1 inactive duty point and              15 membership points during RYE 4 August 1992; and 15 membership points only during RYEs 4 August 1993, 4 August 1994, 4 August 1995, 4 August 1996, and RYE 3 January 1997.  It also shows he earned 15 membership points only during RYE 21 August 1974 and 10 membership points only during RYE 10 April 1975.  This statement shows he completed 18 years, 3 months, and 29 days of qualifying service for retirement.

12.  U. S. Army Reserve Personnel Center Orders D-01-700039, dated               3 January 1997, honorably discharged the applicant from the U. S. Army Reserve in the rank of Chief Warrant Officer Three.

13.  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 complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.

14.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) states, in pertinent part, that an annual Statement of Retirement Points will be prepared for all Soldiers regardless of the number of points awarded.  The purpose of the statement is to give a permanent 

record of the total retirement points a Soldier earns during a retirement year; to tell the Soldier whether he/she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status; and to give the Soldier an opportunity to request correction of errors in the statement.

15.  Army Regulation 140-185 states only Ready Reserve Soldiers and Active Standby Reserve are authorized retirement point credit.  

16.  Title 10, U. S. Code, section 1370(d)(1) states that, unless entitled to a higher grade or to credit for satisfactory service in a higher grade under some other provision of law, a person who is entitled to retired pay under chapter 1223 (Retired Pay for Non-Regular Service) shall, upon application, be credited with satisfactory service in the highest grade in which that person served satisfactorily at any time in the armed forces, as determined by the Secretary concerned in accordance with this subsection.  Section 1370(d)(2) states that, in order to be credited with satisfactory service in an officer grade (other than a warrant officer grade) below the grade of lieutenant colonel, a person covered by paragraph (2) must have served satisfactorily in that grade (as determined by the Secretary of the military department concerned) as a Reserve commissioned officer in an active status, or in a retired status on active duty, for not less than six months.

DISCUSSION AND CONCLUSIONS:

1.  It appears that the applicant would be eligible to retire in the rank and grade   of Captain, O-3, but for the fact there is no evidence to show he completed         20 qualifying years of service for a Reserve retirement.  It is the number of qualifying years that determines Reserve retirement eligibility, not the number of retirement points.

2.  The applicant contended that during his break in service between 22 August 1973 and 4 August 1978, he attended classes on the weekend put on by a Major for well over two years.  

3.  The applicant’s break in service was actually from 10 April 1975 through         4 August 1978.  Therefore, it is possible that he attended classes for the period from August 1973 to April 1975.  However, there is no evidence to show that he did so.  He should have been receiving an annual statement of retirement points during this period.   His records contained an Army National Guard Current Annual Statement, prepared on 22 May 1990, showing he earned membership points only during the period 22 August 1973 through 10 April 1975.  If any retirement points he believed he earned were not showing up on the statement, 

he should have brought it to someone’s attention at the time; or at the latest in August 1978, when he returned to a unit status; or at the extreme latest in May 1990, when that Army National Guard Current Annual Statement was prepared.

4.  If the applicant attended classes between 10 April 1975 and 4 August 1978, he could not have earned any retirement points for those classes as only Ready Reserve Soldiers and Active Standby Reserve are authorized retirement point credit.  At that time, he had no status at all in the Army.

5.  The applicant contended that during the period between 5 August 1990 and   3 January 1997 he completed numerous correspondence courses that apparently were not in the record.  Again, since he was in the U. S. Army Reserve during that time he should have been receiving an annual statement of retirement points.  If he had not been receiving the statement, he should have been questioning why he was not receiving it.  Again, if any retirement points he believed he earned were not showing up on the statement he should have brought it to someone’s attention at the time.

6.  Also, if the applicant had believed he was still a member of the Reserve, but was not receiving his annual statement of retirement points, had he questioned why he was not receiving that statement he would have found out that he had been discharged in January 1997.

7.  The applicant contended that he received a package on 1 September 2005 indicating he was qualified for retirement.  Since the applicant did not provide a copy of that package with his application it cannot be determined exactly what that package told him.

8.  Regrettably, there is insufficient evidence at this time to show that the applicant completed 20 qualifying years of service for a Reserve retirement or that it would equitable to correct his records to show that he did complete          20 qualifying years of service for a Reserve retirement.  

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.




 _   ____xxxx  ______________
       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)                                         AR20080007299





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080007299



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1