IN THE CASE OF:
BOARD DATE: 17 July 2008
DOCKET NUMBER: AR20080007551
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 is eligible for a Reserve retirement.
2. The applicant states that he got paid for over 20 years of qualifying service.
3. The applicant provides no additional evidence.
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 January 1948. He enlisted in the U. S. Army Reserve (USAR) on 4 December 1974.
3. The applicants records contain a U. S. Army Reserve Personnel Center Chronological Statement of Retirement Points, dated 12 October 1989. This Statement records retirement years ending (RYEs) 3 December 1981 through 3 December 1988 and shows he completed 2 years of qualifying service for retirement and 14 years, 10 months, and 8 days of total service (qualifying and nonqualifying) for longevity pay purposes. The reverse side of the Statement contained seven paragraphs of information. Paragraph 2 stated, Title 10, United States Code, Chapter 67, Sections 1331-1337 authorizes retired pay benefits to members and former members of the Reserve components who have completed a minimum of 20 years of qualifying service and attained the age of 60.
4. On 15 September 1998, the applicant was honorably discharged from the USAR.
5. The applicants latest Chronological Statement of Retirement Points, dated 10 June 2008, shows he completed 12 qualifying years for retirement as of RYE 15 September 1998.
6. Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers. In pertinent part, it provides that an annual Statement of Retired 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.
7. Sections 1331 through 1337 (after October 1996, 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.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows that the applicant completed 20 years of service for pay; however, it also shows that he completed only 12 years of qualifying service for a Reserve retirement.
2. The applicants Chronological Statement of Retirement Points, dated 12 October 1989, informed him that he needed to complete a minimum of 20 years of qualifying service to be eligible for retired pay. As the applicant should have been receiving annual statements of retirement points, it does not appear that it should have been a surprise to the applicant that he did not meet the eligibility criteria for Reserve retired pay.
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) AR20080007551
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ABCMR Record of Proceedings (cont) AR20080007551
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