IN THE CASE OF:	  

		BOARD DATE:	       27 May 2009

		DOCKET NUMBER:  AR20080013778 


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, reconsideration of his previous requests for restoration of his rank and pay grade of master sergeant, E-8, and retirement in that grade.

2.  As new issues, the applicant also requests, in effect, that:

	a.  he be issued 34 additional retirement points;

	b.  he be issued a Notification of Eligibility for Nonregular Retirement (commonly known as a 20-year letter); 

	c.  he be allowed to participate in the Reserve Component Survivor Benefit Plan (RCSBP), designating a 20-percent benefit to his ex-wife; and

	d.  he have 20 percent of his retired pay designated for his ex-wife.

3.  The applicant states, in effect, that at the time of the previous Army Board for Correction of Military Records (ABCMR) review, an important document relating to the restoration of his rank was not provided to the Board.  He was one of several Soldiers slotted in E-8 positions.  Further, his rank was not restored despite his return to the U.S. Army Reserve (USAR).  He served on active duty during Operation Desert Storm and is being penalized for answering a call during a period of war.

4.  The applicant provides copies of 10 December 1985 Reserve assignment orders; a 1988 Certificate of Graduation; 20 April 1989 promotion orders; 11 October 1990 orders to active duty; a 9 March 1992 ABCMR decisional document; an annotated 1 April 2008 ARPC Form 249-2-E (Chronological Statement of Retirement Points); a 26 November 2008 ARPC Form 249-2-E; and two DA Forms 2166-7 (NCO Evaluation Report), dated 20 March 1990 and May 2001.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's case by the ABCMR in Docket Number AC92-0521 on 26 February 1992 and AR2001056792 on 9 January 2002.

2.  The applicant's request for restoration of his pay grade has been reviewed by the ABCMR on two previous occasions.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-15, states, "If the ABCMR receives a request for reconsideration more than 1 year after the ABCMR’s original decision or after the ABCMR has already considered one request for reconsideration, then the case will be returned without action and the applicant will be advised the next remedy is appeal to a court of appropriate jurisdiction."  Therefore, this issue will not be addressed further.

3.  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 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.

4.  The applicant was born on 20 August 1952.  He enlisted in the USAR under the Delayed Entry Program on 4 March 1971 for a period of 1 month and 17 days.

5.  He enlisted in the Regular Army (RA) on 21 April 1971 and served on active duty for 6 years, 10 months, and 11 days.

6.  The applicant had a break in service from 4 March 1978 through 1 March 1979 at which time he enlisted in the USAR.  His retirement year ending (RYE) date was adjusted to 1 March at this time.

7.  He served in the USAR from 2 March 1979 through 19 November 1990; receiving 78 points in RYE 1 March 1980, 80 points in RYE 1 March 1981, 84 points in RYE 1 March 1982, 75 points in RYE 1 March 1983, 81 points in RYE 1 March 1984, 77 Points in RYE 1 March 1985, 91 points in RYE 1 March 1986, 57 points in RYE 1 March 1987, and 58 points in RYE 1 March 1988.  During this period the applicant earned 206 points in excess of the minimum necessary for a determination of qualifying years.

8.  The applicant enlisted in the RA in pay grade E-6 on 20 November 1990.

9.  The applicant served on active duty in the RA from 20 November 1990 through 19 November 1994 in support of Operation Provide Comfort and Operation Desert Shield/Desert Storm.

10.  With his release from active duty on 19 November 1994, the applicant enlisted in the USAR in pay grade E-7.

11.  The applicant earned only 15 membership points in RYE 1 March 1996 and 1 March 1997.

12.  A DD Form 4 (Enlistment/Reenlistment Document) shows the applicant reenlisted in the USAR in pay grade E-7 on 4 October 1997.

13.  He had 3 qualifying RYE 1 March 1998, 1 March 1999, and 1 March 2000; followed by a non-qualifying RYE 1 March 2001 wherein he earned only 15 membership points.

14.  The applicant transferred to the Retired Reserve on 19 August 2001.

15.  A 1 April 2008 ARPC Form 249 shows the applicant earned only 15 membership points for RYE 2001 and 7 membership points for RYE 2002.  A 26 November 2008 ARPC Form 249 modified the earlier statement to show the applicant earned 11 membership points and 13 active duty points for the period 2 March 1990 through 19 November 1990; that he has 23 years, 11 months, and 28 days of qualifying service for retirement; and that he earned 4990 total retirement points.



16.  In the development of this case, an advisory opinion was obtained from the U.S. Army Human Resource Command, St. Louis.  It was stated that although the applicant's records had been updated to show he had 24 qualifying years of service, he did not meet the further requirement for receipt of Reserve retired pay because of not having served the last 6 qualifying years in a Reserve Component.

17.  A copy of the opinion was forwarded to the applicant.  There is no record of a response or rebuttal from the applicant.

18.  Army Regulation 135-180 (Qualifying Service for Retired Pay, Nonregular Service), in effect at the time of the applicant's separation, states:

	a.  a qualifying year for the purposes of qualifying for nonregular service retired pay is determined to be any year in which a service member earns a minimum of 50 retirement points;

	b.  to be eligible for retired pay, an individual need not have a military status at the time of application, but must have:  (1) attained age 60, (2) completed a minimum of 20 years of qualifying service, and (3) served the last 6 years of his or her qualifying service as a Reserve Component Soldier; and

	c.  that under Title 10, U.S. Code, section 1331(d), each Reserve Component Soldier who completes the service required under paragraph 2-1 to be eligible for retired pay at age 60 will be notified in writing within 1 year after he or she has completed that service.  This notification will be issued at the time 20 satisfactory years of service are completed.  All of the conditions specified in paragraph 2-1, except attainment of age 60, must be met before the notification is issued to the Soldier concerned.

19.  The National Defense Appropriations Act of 2003, subTitle D, section 631, removed the requirement for a service member to have completed his or her last period of service in a Reserve component for entitlement to a nonregular service retirement at age 60.  However, it did not extend this provision to service members separated prior to 26 April 2005.

20.  Army Regulation 15–185, the regulation under which this Board operates, states at paragraph 2-5, that the Board will not consider any application if it determines that a Soldier has not exhausted all available administrative remedies.



DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, that he honorably served his country for over 28 years with 23 "good years" toward a Reserve retirement.  He should not be penalized for having come back on active duty in the Regular Army instead of remaining in the Reserve.

2.  The documentation provided by the applicant to show entitlement to additional active duty points is insufficient by itself to clearly show that these periods of active duty are not already included in his currently calculated retirement points.  Therefore, it is not appropriate to afford him the requested additional retirement points.

3.  The applicant completed 20 qualifying years toward a nonregular service retirement at the end of his RYE 1994.  However, this occurred during a period he was in the RA.  The applicant served an additional year in the RA before transferring back to the USAR.  Following his release from active duty, the applicant had only 6 full and 2 partial years to meet the 6-year Reserve Component service requirement.

4.  For whatever reasons, the applicant was only able to complete 3 additional qualifying years.

5.  While the legislation was passed that removed the Reserve Component period of service requirement for Soldiers on active duty after 26 April 2005, it was not made retroactive.

6.  Without showing that the applicant completed 3 additional years of qualifying Reserve Component service, the applicant is not entitled to receipt of a nonregular service retirement at age 60.

7.  However, it is unjust to penalize a Soldier who has served this country honorably with 11 years of Regular Army service and 13 qualifying years of Reserve service over a span of over 30 years because he served in the RA instead of in a Reserve status.

8.  Therefore, it is appropriate to redistribute 105 retirement points from the period of RYE 1980 through 1986 without changing the final points total.  These points are to be evenly distributed at 35 points per year into RYE 1996, 1997, and 2001, thereby making these 3 years qualifying retirement years.

9.  With the redistribution of points as recommended above, the applicant should be shown to have completed 26 years, 11 months, and 28 days of qualifying service for retirement with the last 6 years served in the Reserve Component.

10.  The applicant should be issued a 20-year letter showing entitlement to a nonregular service retirement at age 60.

11.  With entitlement to a nonregular service retirement, the applicant is entitled to participation in the RCSBP and the previous determination of non-entitlement is no longer valid.  With the issuance of the 20-year letter, information will be provided the applicant as to his rights, options, and procedures for applying for benefits, including RCSBP and assignment of retired pay.  This constitutes lesser administrative relief and as such it is not appropriate for the Board to take action on these issues at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ____X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  redistributing 105 retirement points from the RYE 1 March 1980 through 1 March 1986 to be evenly distributed at 35 points per year into RYE 1 March 1996, 1 March 1997, and 1 March 2001;

	b.  showing that the applicant completed 26 years, 11 months, and 28 days of qualify service for Reserve nonregular retirement with the last 6 years served in the Reserve Component; and

	c.  issuing the applicant a 20-year letter.



2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of an additional 34 retirement points and determining his RCSBP elections or division of his retired pay.



      ___________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)                                         AR20080013778



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080013778



7


ARMY BOARD FOR CORRECTION OF MILITARYRECORDS

 RECORD OF PROCEEDINGS


1