IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080008329 


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 eligible to receive retired pay. 

2.  The applicant states, in effect, that he was an enlisted man, a warrant officer (WO), a Reserve sergeant, and then became a WO again.  

3.  The applicant provides several documents from his military personnel file in support of his request.

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 record shows he was inducted on 21 September 1942.  His date of birth (DOB) is 9 April 1921.  He was trained as a Supply NCO (noncommissioned officer), in military occupational specialty (MOS) 821.  He attained the rank of sergeant.  He served until he was released from active duty on 10 September 1943 in order to accept an appointment as WO.  

3.  On 11 September 1943, the applicant was appointed as a WO Junior Grade (WOJG) in the Army of the United States (AUS).  He was released from active duty on 29 June 1946. 

4.  On 21 December 1948, the applicant enlisted in the Reserve Corps as a master sergeant (M/Sgt).  He served until he was released from active duty on 8 August 1951.

5.  On 9 August 1951, the applicant was appointed as a WOJG in the AUS in MOS 2200, Administrative Assistant.  On 9 October 1952, he was appointed in the Officer Reserve Corps as a WOJG, in MOS 2200, Military Personnel Officer.  He was appointed as a Reserve WO on 25 June 1953, in MOS 2200, Administrative Assistant, in the rank and pay grade of Chief WO (CWO/W-2).  He was promoted to Chief WO (CWO/W-3) effective 23 June 1959.

6.  On 22 May 1964, the Acting Chief, Officer Branch, Reserve Personnel Division, Headquarters, XIV United States Army Corps, informed the applicant that he had failed to earn sufficient retirement points for retention during the retirement years ending 30 June 1962 to 30 June 1963.  He was informed that regulation required that officers without a Reserve obligation would be removed from an active Reserve status for failure to be credited with a minimum of 27 points during any retirement year.  This included 15 points granted for membership in an active status.  He was advised he was not eligible to be considered for a waiver by statute and would be removed from the active Reserve.  He was informed of his options and provided with a suspense date of 23 June 1964.  His removal was statutory and not waiverable.

7.  On 9 June 1964, the applicant responded.  He stated that during the past  
2 years he did not request transfer to the Standby or Retired Reserve.  He submitted a DA Form 1140 (Army Reserve Qualification Questionnaire) during the years in question and he did not ask for transfer.  His DA Form 1140 was marked to show retained in the Ready Reserve (reason) (next to his mark was the words "not requested" which were handwritten).  Due to a change in Reserve status in 1959 there was not a MOS opening for his primary MOS.



8.  On 13 August 1964, the Chief, Officer Branch, Reserve Personnel Division, responded to the applicant’s letter, dated 9 June 1964.  He informed him that records indicated that he had failed to be credited with sufficient retirement points for retention for retirement years ending 30 June 1962, 1963, and 1964.  Current regulations stated only one waiver could be granted during any 3 year period for failure to earn the required 27 points.  

9.  On 6 October 1964, he was informed that his letter and reply did not contain sufficient justification to warrant its forwarding to the Chief, Personnel Operations, Department of the Army, for waiver of retirement points for retirement years ending 30 June 1962, 1963, and 1964.  He was advised to initiate another letter of request for waiver of retirement points for the aforementioned retirement years.  In the event his request was granted, it was suggested that he find an active Reserve unit assignment prior to forwarding a letter of request for waiver to their headquarters.  He was advised that evidence of active participation with an Army Reserve unit should accompany his letter of request.   

10.  On 19 March 1965, the Chief, Officers Branch, Reserve Personnel Division, informed the applicant, that since he had failed to initiate another request for waiver of retirement points containing a complete justification as to his reason for failing to earn sufficient retirement years ending June 1962, 1963, and 1964, his request for waiver was cancelled.  Since he did not desire a waiver, his removal from an active status was mandatory.  He was eligible for transfer to the Retired Reserve but not eligible to receive retired pay.  He was advised to complete the applications that were provided and return them within 30 days.  If his reply was not received within 30 days, he was advised he would be removed from an active status effective 15 April 1965.

11.  On 31 March 1965, the applicant responded and stated that the applications had not been enclosed and it was impossible for him to comply with the command. He indicated that he would be out of the city until 19 April 1965 and would desire an extension of another 30 days.  It was now possible for him to join a unit in his area and he needed a waiver to permit him to do the same.  He stated that last year he had applied and was accepted to join an active Reserve unit in Milwaukee, Wisconsin; however his request was not accepted by Corps Headquarters.

12.  On 5 April 1965, the applicant was informed that since he failed to comply with the letter dated 6 October 1964 and would complete another full retirement year within the next few months, his removal from an active status was mandatory and not waiverable.  He was not eligible for assignment to an active Reserve unit and according to regulation he was eligible for transfer to the Retired Reserve but not eligible to receive retired pay.  He was requested to complete an attached application form and to return it no later than 10 May 1965.  He was advised that if his reply was not received by the suspense date, he would be removed from an active status effective on or about 15 May 1965.

13.  On 4 May 1965, the applicant was informed that no reply was received from him.  He was advised that if no reply was received on or before the suspense date of 18 June 1965, action would be taken to discharge him from his commission.

14.  On 14 July 1965, the applicant was discharged under the provisions of Army Regulation 135-175, paragraph 33f, for failure to earn sufficient retirement points for retention in the pay grade W-3.  He was 44 years, 3 months, and 5 days of age on the date of his discharge.

15.  On an unknown date, a Statement of Service was prepared on the applicant. It states that he had completed 19 years, 9 months, and 10 days of total service as of the end of the last retirement year; 17 years, 9 months, and 10 days of total satisfactory service for retention; and 16 years, 9 months, and 10 days of total satisfactory service for retirement.  He was not issued, nor was he eligible to have been issued a notification of qualification for retired pay at age 60 (20-Year Letter) prior to his discharge. 

16.  Army Regulation 135-175, in effect at that time, provided policy, criteria, and procedures governing the separation of officers of the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR), except for officers serving on active duty or active duty training exceeding 90 days.  Section II pertained to discharge criteria.  Paragraph 33f pertained to failure to earn sufficient retirement points for retention.  It stated that an officer would be removed from an active status for failure to earn sufficient retirement points for retention. 

17.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), indicated, in pertinent part, that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (a) attained 
age 60; (b) completed a minimum of 20 years of qualifying service; and
(c) served the last 8-years of his or her qualifying service as a Reserve Component (RC) Soldier. 

18.  The same regulation states, in paragraph 2-3, that a 20-Year Letter will be issued to Reserve Component Soldiers within 1 year after they complete 
20 years of qualifying service for retirement.  This letter will be issued by the Chief, National Guard Bureau, for ARNG Soldiers, and the Commander, 
Army Human Resources Command (AHRC)-St. Louis for USAR Soldiers.  The letter, once issued, may not be withdrawn or revoked.  The Soldier may voluntarily elect to transfer to the Retired Reserve or be discharged from the Army.  This regulation also states service, which was performed concurrent in the Regular Army, must be followed by 8 years of qualifying service in a Reserve Component and that when this requirement is met, the Soldier will receive a 
20-Year letter.

19.  Army Regulation 140-10, in effect at that time, sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.   Paragraph 10 pertained to removal from active status.  It stated, that members of the Army Reserve, entitled by virtue of prior military service to retired or retirement pay from the Armed Forces of the United States, were not eligible for retention in an active status.  Nonobligated reservist would be removed from an active status in the Army Reserve by discharge or transfer.  A Reserve officer who had completed less than 20 years of qualifying Federal service for retired pay was required to accrue a minimum of 27 points each full retirement year of retention in an active status.  A one time waiver during any 3-year period for failure to earn the required 27 points could be granted. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant served in an enlisted status, WO status, enlisted Reserve status, and once again as a WO.  He attained the rank of CWO/W-3.  

2.  The available evidence shows the applicant failed to earn sufficient retirement points for retention for retirement years ending 30 June 1962, 1963, and 1964.  He was advised that regulatory authority stated that only one waiver could be granted during any 3 year period for failure to earn the required 27 points.  He was granted the opportunity to provide justification and was given a suspense date to respond to the proper authorities.  However, he failed to comply and was removed from an active status and discharged.

3.  The applicant was honorably discharged on 14 July 1965 due to failure to earn sufficient retirement points for retention.  He was 44 years, 3 months, and 5 days old on the date of his discharge.  He was not eligible to receive retired pay. 

4.  The applicant completed 19 years, 9 months, and 10 days of total service as of the end of last retirement year, 17 years, 9 months, and 10 days of total satisfactory service for retention, and 16 years, 9 months, and 10 days of total satisfactory service for retirement.  He failed to complete 20 years of creditable service for retirement purposes.  He was not issued, nor was he eligible to have been issued a notification of qualification for retired pay at age 60 (20-Year Letter) prior to his discharge.  He is currently 87 years of age.  He did not qualify to receive retired pay and he has provided no supporting evidence to show that he should now be eligible or entitled to retired pay and benefits. 

5.  Based on the evidence, there is no basis to grant the applicant entitlement to retired pay or to show that he was credited with 20 years of creditable service for retirement purposes. Therefore, there is an insufficient basis to approve his request.

6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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)                                         AR20080008329



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ABCMR Record of Proceedings (cont)                                         AR20080008329



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