IN THE CASE OF:	 

		BOARD DATE:	  16 December 2008

		DOCKET NUMBER:  AR20080014149 


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 he be given retired pay for nonregular service.  He also requests that his retired pay be retroactive.

2.  The applicant states, in effect, that he would like for the Board to consider his military service from June 1976 to May 1995 (prior to his incarceration) and his discharge from military service in March 1998 (sic).  He states he would like to receive his retired pay and medical benefits, which he may have been entitled to before he was incarcerated.  He served 7 years of active duty, 12 years reserve duty, and 2 years of Civil Service.  

3.  The applicant provides a self-authored statement, dated 11 August 2008; a copy of Department of the Army, U.S. Army Reserve (USAR) Personnel Command, S. Louis, MO, Orders D-02-808846, dated 3 February 1998; and United States of America, Certification of Military Service, dated 13 March 2008 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 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 military personnel record shows he enlisted in the Regular Army on 30 June 1976.  He completed the necessary training and was awarded military occupational specialty (MOS) 91B (Medical Specialist).

3.  He served until he was honorably discharged from active duty on 16 April 1979 for the purpose of immediate reenlistment.  He completed 2 years,
9 months, and 16 days of active service.

4.  He immediately reenlisted on 17 April 1979 for 4 years.

5.  He served continuously until he was honorably released from active duty and transferred to the USAR Control Group (Reinstatement), St. Louis, Missouri on  
6 April 1983.  He completed 3 years, 11 months, and 20 days of active service.

6.  He enlisted in the USAR on 7 April 1983 for 3 years.  

7.  USAR Personnel Command, Orders D-02-808846, dated 3 February 1998, shows that the applicant was honorably discharged from the USAR on
3 February 1998.

8.  A review of the applicant's ARPC Form 249E (Chronological Statement of Retirement Points), dated 20 November 2008, shows that the applicant only has  
7 years, 8 months, and 8 days of qualifying service towards retirement.

9.  Army Regulation 135-178 (Enlisted Administrative Separations) establishes the policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components.  Paragraph 1-3 states, in pertinent part, that orders discharging a Soldier would not be revoked or the effective date changed, after the effective date of discharge, unless there was evidence of manifest error or fraud.  After the effective date of discharge, orders can be amended by the separation authority only to correct manifest errors such as the wrong character of service or to correct administrative errors such as rank, social security number, or misspelled name. 



10.  Army Regulation 135-180 (Qualifying Service for Retired Pay NonRegular Service) implements the statutory authority governing what constitutes qualifying service for retired pay for nonregular service in the Reserve Components.  Chapter 2, in pertinent part, states that to be eligible for retired pay, an individual must have attained the age of 60 and completed a minimum of 20 years of qualifying service, the last eight of which are served in a reserve component.  A qualifying year is defined as a year of service during which a Reservist earns at least 50 retirement points.  For service in an active component, a qualifying year of service is a full calendar year consisting of 365 or 366 days, as appropriate.

11.  Title 10, U.S. Code, Chapter 1223 (Retired Pay for Non-Regular Service), Section 12731 (Age and Service Requirements) provides, in pertinent part, that a person is entitled, upon application, to retired pay if the person is age 60 and has performed at least 20 years of qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that he be given retired pay for nonregular service.  He also requests that his retired pay be retroactive.

2.  The evidence shows that the applicant only has 7 years, 8 months, and
8 days of qualifying service for retired pay.  Although he may have served 12 or more years while on USAR status, all but one of those years did not meet the minimum 50 points to qualify for retirement.  The law states that a reservist is entitled to retired pay at age 60 if he or she has performed at least 20 years of qualifying service.  The applicant does not meet the minimum 20 years of qualifying service for retirement.  Therefore, he is not entitled to retired pay for nonregular service.

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)                                         AR20080014149



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ABCMR Record of Proceedings (cont)                                         AR20080014149



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