IN THE CASE OF:	  

		BOARD DATE:	        23 APRIL 2009

		DOCKET NUMBER:  AR20080010345 


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 retirement points credit for time spent in support of parachute demonstration with the 20th Special Forces Group, Parachute Demonstration Team.

2.  The applicant states that during the period 20 February 1987 to 23 February 1992, he was assigned as an instructor and member of the 20th Special Forces Group, Parachute Demonstration Team, and performed parachuting activities in support of the Alabama Army National Guard (ALARNG) and the Army.  He adds that other duties included training and supervising selected members in preparatory training for the Special Forces Training Group Military Freefall Course as directed by the U.S. Army Special Forces/Operations Command.  He further adds that demonstrating parachute duty required performances into nationally televised football bowl games as well as performances into high risk, high visibility locations to support assigned missions.  He concludes that the parachuting duties he performed were not properly documented and/or forwarded to higher headquarters for entry into permanent record.  

3.  The applicant provides a copy of his National Guard Bureau (NGB) Form 23B (Army National Guard Retirement Points History Statement), dated 18 January 2008; a copy of his NGB Form 22 (Report of Separation and Record of Service), dated 23 January 1995; and an exchange of emails and/or letters, dated on miscellaneous dates in 2005, 2006, and 2007, with various individuals, 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 records show he was born on 31 May 1949 and initially enlisted in the U.S. Army Reserve (USAR) on 16 December 1968.  He subsequently enlisted in the Regular Army on 22 January 1969 and held military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).  He was honorably separated and transferred to the USAR Control Group on 1 August 1980.  He remained in the USAR, completed various staff and leadership assignments, and was honorably discharged on 17 July 1980.

3.  The applicant’s records further show he enlisted in the ALARNG on 18 July 1980.  He was subsequently assigned to the 1st Battalion, 20th Special Forces Group, and was promoted to sergeant major on 8 April 1989 and command sergeant major (CSM) on 14 February 1991.

4.  On 28 April 1995, the Office of the Adjutant General, ALARNG, Montgomery, AL, published Orders 118-223, honorably discharging the applicant from the ALARNG and reassigning him in his CSM rank to the Retired Reserve, effective 23 January 1995.  The NGB Form 22 he was issued shows he completed 26 years, 7 months, and 17 days of total service for pay.

5.  In 2005/2006, the applicant (and other members of the 20th Special Forces Group, Parachute Demonstration Team) began a quest to resolve a matter affecting his retirement points.  He and other individuals attempted to recover service time/credit points for non-regular retirement for duties he/they performed from 1987 to 1992, in support of the 20th Special Forces Group Command recruiting initiatives and Military Freefall program.  An unofficial and unsigned Excel worksheet was prepared documenting various activities performed on various dates/locations during the period from 20 February 1987 through 23 February 1992. 

6.  On 13 July 2007, by letter, a former first sergeant (1SG) of the 20th Special Forces Group, apparently representing other members in the group with the grievance to recover service credit, addressed the issue to the Office of the Inspector General, Joint Forces Headquarters, ALARNG. 

7.  On 9 July 2007, the Inspector General, notified the member (and in effect, the applicant and other members of the group) that it was impossible to verify if the active duty points for the jumps in question were counted in the active duty column total of his NGB Form 22.  The Inspector General further requested the current Commander of the 20th Special Forces Group sign a memorandum of authentication verifying the jumps in question were indeed performed.  

8.  An advisory opinion was obtained on 4 December 2008, in the processing of this case.  An Annuity and Retirement Analyst at the Personnel Actions and Services Directorate of the U.S. Army Human Resources Command, St. Louis, MO, stated that the applicant’s military record was reviewed and that it was ascertained that he was a member of the ALARNG during the last 15 years of his career.  Therefore, a determination of his points correction should be handled by the ALARNG.

9.  A second advisory opinion was obtained on 10 February 2009 in the processing of this case.  The Chief, Personnel Division, National Guard Bureau, stated that there was insufficient documentation provided to support the applicant’s assertion that he performed duty on the dates indicated.  The applicant must provide documentation such as duty orders, aircraft manifests, or certified attendance rosters that document he was present and completed the required duty on the dates for which he is claiming retirement credit.  

10.  The applicant was provided with a copy of this advisory opinion on 17 February 2009; however, he did not respond within the allotted time. 

11.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components Soldiers.  Paragraph 2-3 of this regulation covers the notification of retired pay eligibility.  It states, in pertinent part, that the Chief of the National Guard Bureau will issue the notification to Army National Guard Soldiers.  After a person has been granted retired pay under 10 USC 1331—1337 (provided the payment of the retired pay is begun after 14 October 1966), or has been notified that he or she has completed the years of service required for eligibility for retired pay at age 60, the person’s eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service performed, unless it resulted directly from the fraud or misrepresentation of the individual concerned.  The number of years of creditable service upon which retired pay is computed may be adjusted to correct any error, miscalculation, misinformation, or administrative determination, and when such a correction is made the person is entitled to retired pay in accordance with the number of years of creditable service, as corrected, from the date he or she is granted retired pay (10 U.S. Code (USC), section 1406; Act of 14 October 1966 Public Law (PL) 89–652; 80 Stat. 902).   An individual’s eligibility for retired pay may be denied or revoked on the basis of an error or administrative determination in service requirements of paragraph 2–1a(4) of this regulation.  Effective control is essential to ensure that qualifying service is accurately computed and for the timely notification of individuals concerned. Suitable controls and Procedures will be established by the responsible officials to ensure that erroneous administrative determinations are avoided. Direct communication between custodians of personnel records is encouraged when necessary for verifying periods of service and retirement point credits.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be granted retirement credit for time spent in support of parachute demonstration with the 20th Special Forces Group, Parachute Demonstration Team.

2.  The applicant’s honorable and distinguished service to the Nation extending over 26 years is not in question.  However, there is insufficient documentary evidence to support his assertion that he performed duty on the dates indicated.  In the absence of documentation such as duty rosters, manifests, log books, trip reports, and/or certified attendance rosters, that not only show he performed the jumps, but must also satisfactorily show that the performed jumps neither occurred during drill weekends nor was he credited for such jumps, regrettably, there is insufficient evidence to grant the applicant the requested relief.  

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)                                         AR20080010345





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ABCMR Record of Proceedings (cont)                                         AR20080010345



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