IN THE CASE OF:	  

		BOARD DATE:	  17 March 2009

		DOCKET NUMBER:  AR20080013821 


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 his retirement status be updated, his retirement letter [20-year letter] be issued, and that he be provided a retirement discharge certificate.

2.  The applicant states, in effect, that he has not received his retirement letter and he has over 21 years of service.  In addition, the applicant states, in effect, that the type of the discharge certificate he was issued does not reflect his retirement status.

3.  In support of his application, the applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 enlisted in the U.S. Army Reserve on 9 March 1985.  On 14 March 1985, he enlisted in the Regular Army.  The applicant served in the Regular Army until 3 March 1988 when he was released from active duty and transferred to the Army Reserve Control Group (Reinforcement).  The applicant continued to serve in the Army Reserve until 18 March 1993 when he was discharged.

3.  The evidence shows the applicant again enlisted in the Army Reserve on 18 March 2003 and on 13 June 2004 was ordered to active duty in support of Operation Iraqi Freedom.  The applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), for disability with severance pay on 19 May 2006.  The applicant had 1 year, 11 months, and 7 days of net active service during this period.  The applicant's DD Form 214 shows the applicant had 3 years, 3 months, and 27 days of prior active service and 15 years, 11 months, and 2 days of prior inactive service.  The 15 years, 11 months, and 2 days shown on the applicant's DD Form 214 is not supported by the applicant's ARPC Form 249-E (Chronological Statement of Retirement Points).  The evidence shows that the applicant received $29,959.20 in severance pay on the day of his discharge.

4.  In his application to the Board, the applicant identified himself as being a member of the Retired Reserve.  On 19 May 2006, the U.S. Army Transportation Center, Fort Eustis, Virginia, published Orders 139-0001 reassigning him from his unit to the U.S. Army transition point for transition processing.  After processing, the applicant was discharged (emphasis added) from the Army Reserve.

5.  On 30 September 2008, an ARPC Form 249-E was prepared for the applicant.  This Form shows that the applicant had a total of 5 years 11 months and 23 days qualifying service for retirement.  This Form further shows the applicant had 7 years in which he attained more than 50 points creditable towards retirement in the period from 9 March 1985 through 19 May 2006, excluding the period during which he had a break in service  -  the period from 19 March 1993 through 18 March 2003.  In the period from 14 March 1985 through 19 May 2006, the applicant only accumulated a total of 11 years 1 month, and 17 days service in the Reserve and in the Army.

6.  The applicant's ARPC Form 249-E shows he earned no retirement points in the retirement years ending 8 March 1988 and 18 March 1993.  In retirement years ending 8 March 1989, 8 March 1990, 8 March 1991, 8 March 1992, and 8 March 1993, the applicant only accumulated 15 membership points per year.

7.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) states in paragraph 2-3, that a 20-year letter will be issued to the Reserve Component Soldier within 1 year after completion of 20 years of qualifying service for retirement.  This letter will be issued by the Chief, National Guard Bureau, for Army National Guard Soldiers, or the Commander, U.S. Army Human Resources Command, St. Louis, for Army Reserve Soldiers.  The letter, once issued, may not be withdrawn or revoked.

8.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the active Army.  This regulation states that the DD Form 363A (Certificate of Retirement) is issued to all retiring Soldiers, except those on the temporary disability retired list, those being retired from the Army of the United States, or from the Army National Guard if on full-time National Guard duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant stated in his request that he had 21 years of service in the Army and requested issuance of a 20-year letter and a retirement discharge certificate.  However, the evidence shows that although he had been affiliated with the Army [in both the Regular Army and Army Reserve] for 11 years, 1 month, and 17 days on the date he was discharged, he only has 7 "good" years which qualified him for retired pay.  Based on the evidence shown on his ARPC Form 249-E, the applicant was not and is not now eligible for issuance of a 20-year letter.

2.  The applicant also requested that his retirement status be updated.  Based on the evidence, the applicant is not a member of the Retired Reserve as he indicated in his application to the Board.  The applicant was discharged from the Army Reserve on 19 May 2006 and presently has no relationship with the Army – either the Retired Reserve or another of its components.  There is no correction that can be made to the applicant's present status and relationship with the Army.

3.  The applicant is not entitled to issuance of a Certificate of Retirement.  The applicant was discharged and not transferred to the Retired Reserve when he was last separated from the Army.

4.  The DD Form 214 the applicant was issued on his discharge date indicates he had 15 years, 11 months, and 2 days of prior inactive service; however, this total amount of service is not supported by the applicant's ARPC Form 249-E.  If the applicant believes the ARPC Form 249-E is in error, he should coordinate its correction with the U.S. Army Human Resources Command, St. Louis.

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)                                         AR20080013821



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ABCMR Record of Proceedings (cont)                                         AR20080013821



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