IN THE CASE OF:
BOARD DATE: 28 October 2008
DOCKET NUMBER: AR20080012290
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 that he be credited with one year of Temporary Disability Retired List (TDRL) retirement points.
2. The applicant states that he should be awarded one year of TDRL points to give him his correct retirement points. He believes that his 18-plus years of active duty, plus his TDRL and his combined total years, should give him over 21 years of eligible retirement years for pay.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 22 December 2004; orders placing him on the TDRL; orders removing him from the TDRL with a memorandum of transmittal; and his Certificate of Retirement.
CONSIDERATION OF EVIDENCE:
1. The applicant was commissioned a second lieutenant in the U. S. Army Reserve on 14 May 1978. On 23 November 2003, he was ordered to active duty for the purpose of active duty medical extension.
2. On 22 December 2004, the applicant was retired under the provisions of Title 10, U. S. Code, section 1202 (TDRL), and was placed on the TDRL the following day. His separation orders show he was credited with 16 years and 1 month of service for a disability retirement; 18 years, 6 months, and 4 days of section 1405 service; and 26 years, 7 months, and 9 days of service for basic pay.
3. On 23 January 2006, the applicant was removed from the TDRL and permanently retired by reason of physical disability.
4. Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) states that only Ready Reserve Soldiers and Active Standby Reserve Soldiers are authorized retirement point credit.
5. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) states the Ready Reserve consists of Soldiers assigned to troop program units and U. S. Army Reserve control groups who are available for mobilization in time of war or national emergency. It defines Standby Reserve as units or members of the Reserve Components, other than those in the Ready Reserve or Retired Reserve, who are liable for active duty.
6. Title 10, U. S. Code, section 1405, states the years of service of the member for the purpose of computing retired pay are computed by adding (1) the members years of active service; (2) the years of service, not included in clause (1), with which the member was entitled to be credited on 31 May 1958; and (3) the years of service, not included in clause (1) or (2), with which the member would be entitled to be credited under section 12733 of this title if the member were entitled to retired pay under section 12731 (non-regular retirement) of this Title.
7. Title 10, U. S. Code, section 12733, states that, for the purpose of computing the retired pay of a person for a non-regular retirement, the persons years of service and any fractions of such a year are computed by dividing 360 into the sum of the persons (1) days of active service; (2) full-time service under specified sections of Title 32, U. S. Code; and (3) one day for each retirement point credited (with specified limitations).
8. Title 10, U. S. Code, section 101(d) defines "active service" as service on active duty or full-time National Guard duty.
DISCUSSION AND CONCLUSIONS:
1. The applicant requested that he be credited with one year of TDRL points. However, in accordance with Army Regulation 140-185, the applicant was not authorized retirement point credit during the period he was on the TDRL as he was neither a Ready Reserve Soldier nor an Active Standby Reserve Soldier who was available for mobilization.
2. The regulatory guidance is in accord with Title 10, U. S. Code, section 1405. The applicant's time on the TDRL was not active service; he had no creditable service as of 31 May 1958; and he was not retired under the provisions of section 12731.
3. Regrettably, there appears to be no basis on which to grant the relief requested.
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) AR20080012290
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ABCMR Record of Proceedings (cont) AR20080012290
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