IN THE CASE OF:	  

		BOARD DATE:	        29 JANUARY 2009

		DOCKET NUMBER:  AR20080008020 


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 she be issued a Notification of Eligibility for Retired Pay at Age 60 (better known as the 20-year letter) for non-regular retirement. 

2.  The applicant states, in effect, that she should be issued a 20-year letter for non-regular retirement because the 6-year commitment to a Reserve unit is obsolete and she now wishes to be considered under the new rules for retirement.  She also states that she is a Voluntary Separation Incentive (VSI) recipient.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of her enlistment contract. 

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 was born on 8 September 1951 and enlisted in the United States Army Reserve (USAR) on 18 March 1975.

3.  On 19 January 1976, she enlisted in the Regular Army for a period of 3 years.  She remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-7 on 19 August 1988.

4.  On 5 April 1995, the applicant entered into an enlistment contract in which she agreed to serve in the USAR for a period of 8 years.  As part of that contract she indicated that she understood that in order to qualify for retirement benefits at age 60, she must achieve 20 qualifying years of Federal service and be a member of the Reserve Component (RC) during the last 8 years of military service.  A qualifying year of military service for retirement requires the member to accrue a minimum of 50 points per retirement year and her years of service in the Individual Ready Reserve would not qualify her for retired pay at age 60 unless she accrued at least 50 points for each retirement year and each of those years, when added to other qualifying years of Federal service amounts to a total of 20 years.

5.  On 30 June 1995, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 16-8, under the Early Release Program - VSI.  She had served 19 years, 5 months, and 12 days of total active service and was transferred to the USAR Control Group (Reinforcement).  She was authorized to be paid $12,885.08 in VSI payments for a period of 40 years, provided she remained affiliated with the USAR.

6.  A review of the applicant's Chronological Statement of Retirement Points (ARPC Form 249-E) shows that the applicant has had only 2 qualifying years of service since her discharge in 1995.  The retirement years ending on 18 March 2006 and 18 March 2007 are the only 2 years in which she received 50 points or more.  The applicant actually attained 20 years of service in the Retirement Year Ending (RYE) 18 March 1996; however, she had not served the last 8 years of service in an RC status and thus was ineligible to receive a 20-year letter.

7.  In May 2008, the applicant contacted officials at the Human Resources Command in St. Louis (HRC-STL) regarding her 20-year letter and was informed by officials at that agency that she needed 4 more qualifying years of service to qualify for a 20-year letter.
8.  In the processing of this case, a staff member of the Board contacted officials at the HRC-STL, the same individual who spoke to the applicant in May 2008, to ascertain exactly why the applicant was not entitled to a 20-year letter for non-regular retirement at age 60.  Officials at the HRC-STL explained that while there is currently no requirement for minimum RC service to qualify, at the time the provision was enacted, it provided that for members who completed the qualifying years of service on or after 5 October 1994, but before 26 April 2005, the last 6 years of qualifying service must have been in the RC.  The rules in effect at the time the person attains 20 years of service are applied to each individual and in the applicant's case, 6 years of qualifying RC service applies.

9.  Department of Defense Instruction (DODI) Number 1215.07 updated existing responsibilities and established uniform procedures consistent with the requirements for crediting of Active and Reserve service for non-regular retirement under Chapter 1223 of Title 10, U.S. Code.  It provides, in pertinent part, that to qualify for non-regular retired pay at age 60, a member must have completed 20 qualifying years of service unless otherwise provided by law.  For members who completed the years of qualifying service before 5 October 1994, the last 8 years of such qualifying service must have been in an RC.  For members who completed the years of qualifying service on or after 5 October 1994, but before 26 April 2005, the last 6 years of such qualifying service must have been in an RC.  For members who completed the years of qualifying service on or after 26 April 2005, there is no minimum RC service requirement.

DISCUSSION AND CONCLUSIONS:

1.  At the time the applicant attained 20 qualifying years of service (RYE 18 March 1996), she had not served in the RC for a minimum of 6 years.  Accordingly, she was not eligible to be issued a 20-year letter to qualify for non-regular retirement at age 60.

2.  The applicant did not have any additional qualifying years of RC service until RYE 18 March 2006 and 18 March 2007.  Accordingly, she has not met the regulatory requirement to qualify for non-regular retirement at age 60 as of this date.

3.  Therefore, until such time as the applicant has 6 qualifying years of RC  service, she is ineligible for non-regular retirement.

4.  The applicant's contention that she should be considered under the current rules to qualify for non-regular retirement has been noted and found to lack merit.  The applicant's service is specifically governed by applicable laws and directives that specify her entitlements and she has failed to show through the evidence of record and the evidence submitted with her application that her service qualifies under the current policy that requires no minimum Reserve Component service. 

5.  In order to justify correction of a military record the applicant must show 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.



      __________XXX____________
               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)                                         AR20080008020



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ABCMR Record of Proceedings (cont)                                         AR20080008020



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