IN THE CASE OF:
BOARD DATE: 9 April 2009
DOCKET NUMBER: AR20080013569
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 a 20-year letter for retirement.
2. The applicant states, in effect, that he was not aware of a change in the law for retirement. He contends that he completed his last five years in a Reserve Component as of retirement year ending (RYE) 2004 and that in April 2005 the law changed eliminating the requirement for Soldiers to complete the last six years in a Reserve Component to qualify for retirement.
3. In a letter, dated 29 August 2008, the applicant states that he served 15 years on active duty and another five years in the U.S. Army Reserve (USAR). He states that he was not aware of the change in the law to have six years of service in the Reserves for retirement. He indicates that he served his country to the best of his ability and he thinks he warrants a 20-year retirement.
4. The applicant provides an email, dated 29 July 2008, from the U.S. Army Human Resources Command Retirement Services in support of his application.
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 20 December 1952. He entered active duty on
22 January 1977 and was honorably released from active duty in the rank of major on 29 September 1992 under the Voluntary Separation Incentive Program. He was appointed a Reserve officer in the USAR on 30 September 1992 and was assigned to the Retired Reserve on 11 January 2005.
3. The applicant's Chronological Statement of Retirement Points, dated
24 March 2009, shows he completed 20 years, 8 months, and 8 days of qualifying service for retired pay. The statement shows that the applicants last five years of qualifying service were in a Reserve Component (RYEs
29 September 2000, 29 September 2001, 29 September 2002, 29 September 2003, and 29 September 2004). The statement also shows he earned a total of 47 points during RYE 29 September 1999 (20 inactive duty points,
15 membership points, and 12 active duty points) and he earned a total of 11 points during RYE 11 January 2005 (7 inactive duty points and 4 membership points).
4. In the processing of this case, a staff advisory opinion was obtained from the Chief, Transition and Separations Branch, U.S. Army Human Resources Command, St. Louis, Missouri. The opinion denied the applicants request for a 20-year letter. The opinion pointed out that the applicant lacked the last 6 years of qualifying service in a Reserve Component as a requirement as outlined in sections 12731-12737 of Title 10, U.S. Code.
5. The advisory opinion was furnished to the applicant for comment. The applicant responded. In summary, he stated that he now knows that he needed six good years in the Reserve but the regulation is only designed to prevent people such as himself from serving their country and achieving a retirement. He points out that he served his country well and thinks he deserves a 20-year retirement.
6. Title 10, U.S. Code, section 12731 provides that a non-regular service member is entitled, upon application, to retired pay if the person is at least 60 years of age; had performed at least 20 years of qualifying service the last
six years of qualifying service while a member of a Reserve Component, except
that in the case of a person who completed the service requirements before
5 October 1994, the number of years of such qualifying service under this paragraph shall be eight. The National Defense Authorization Act of 2005 changed the law, effective 27 April 2005, by removing a minimum Reserve Component service requirement.
DISCUSSION AND CONCLUSIONS:
Although the applicant completed 20 years, 8 months, and 8 days of creditable service for a non-regular retirement at age 60, only his last five years of qualifying service were in a Reserve Component. However, the applicant earned
47 retirement points during RYE 29 September 1999. He earned 11 retirement point during RYE 11 January 2005. As a matter of equity, it would be appropriate to redistribute 3 retirement point points he earned during RYE 11 January 2005 to RYE 29 September 1999 to make it a qualifying year for retirement.
BOARD VOTE:
___X___ ____X___ ___X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. redistributing 3 retirement points he earned during RYE 11 January 2005 to RYE 29 September 1999; and
b. issuing him a 20-year letter for retirement purposes at age 60.
________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) AR20080013569
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