IN THE CASE OF:	
		BOARD DATE:	  20 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014787 


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 22 May 1991 honorable discharge from the U.S. Army Reserve (USAR) be voided and that he be transferred to the Retired Reserve on that same date in lieu of being discharged. 

2.  The applicant states that he recently became aware that although he has 20 years of active and Reserve/National Guard service, he is ineligible to retire.  He adds that this is an injustice in that he was told while all years had to have 50 points for eligibility retirement, he was also told that bad years, those with less than 50 points, could use active duty points from previous years.  He concludes that he has three times the amount of points necessary for any Reserve or National Guard Soldier to retire.

3.  The applicant provided the following documents in support of his application:

	a.  Army National Guard Retirement Points History Statement, dated 24 June 2008.

	b.  Honorable Discharge Certificate, dated 19 May 1991.

	c.  National Guard Bureau (NGB) Form 23 (Retirement Credits Record).

	d.  NGB Form 22 (Report of Separation and Record of Service), dated 1 April 1988.

	e.  DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 26 September 1986, 31 July 1985, and 25 November 1971.

	f.  DD Form 215 (Correction to DD Form 214), dated 20 August 1985.

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 records show he initially enlisted in the Ohio Army National Guard (OHARNG) for a period of 6 years on 20 May 1971.  He subsequently entered active duty for training (ACDUTRA) on 21 July 1971, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 63A (Mechanic).  He was honorably released from ACDUTRA to the control of his ARNG unit on 25 November 1971. 

3.  On 16 April 1979, the applicant entered the Active Guard Reserve (AGR) program.  He was awarded MOS 75C (Personnel Management Specialist) and attained the rank/grade of sergeant first class (SFC)/E-7.  He was honorably released from active duty for completion of his AGR duty on 31 July 1985.  

4.  On 1 August 1985, the applicant was ordered to active duty for training (ADT) to serve as the Education Noncommissioned Officer (NCO) for the AGR program at Aberdeen Proving Ground, Maryland.  He was honorably released from active duty to the control of his ARNG unit on 26 September 1986.

5.  On 1 April 1988, the applicant was honorably discharged from the OHARNG and was reassigned to the USAR Control Group (Reinforcement).  The NGB Form 23 he was issued shows he completed 16 years, 10 months, and 12 days of military service.


6.  On 22 May 1991, USAR Personnel Center, St. Louis, Missouri, published Orders D-05-015849 directing the applicant's honorable discharge from the USAR, effective 22 May 1991, upon expiration of his term of service, in accordance with Army Regulation 135-178 (Army National Guard and Army Reserve - Enlisted Administrative Separations).

7.  There is no indication in the applicant’s records that he completed 20 years of service or that he was issued a 20-Year Letter notifying him that he had completed the required years of service necessary to qualify for retired pay at age 60.  

8.  The applicant's records do not reveal that he submitted a Request for Reserve Component Assignment/Attachment (DA Form 4651-R) requesting retirement or to be transferred to the Retired Reserve.

9.  Army Regulation 135-178 prescribes the policies and procedures for the separation of USAR enlisted Soldiers.  It specifies, in pertinent part, that on expiration of term of enlistment, reenlistment, or period of statutorily obligated service, the Solider will be discharged by the separation authority.  

10.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a indicates that to be eligible for retired pay an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and (3) served the last 8 years of his or her qualifying service as a Reserve Component (RC) Soldier.  The requirement to serve the last 8 years in an RC was later amended to the last 6 years, and on
26 April 2005 this requirement was reduced to zero (0) years.  This regulation also specifies, in part, that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.

11.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge orders should be revoked and that he should be assigned to the Retired Reserve.
2.  The evidence of record shows that the applicant completed 16 qualifying years of service for retirement at the time he was discharged from the ARNG.  He did not complete a minimum of 20 years of qualifying service.  Therefore, he was never issued a 20-year letter and could not have requested a transfer to the Retired Reserve.  Accordingly, he was honorably discharged from the USAR in May 1991.

3.  The applicant was a senior personnel NCO at the time he was discharged from the ARNG and the USAR.  Any claim that he did not know he had to serve 20 qualifying years or that he needed to earn at least 50 points to earn a qualifying year without merit.  The applicant knew, or should have known, that he needed to earn 50 or more points and the adverse impact a discharge may have on him in the future.  Therefore, in view of the foregoing evidence, the applicant is not entitled to a relief in this case.

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)                                         AR20080014787



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ABCMR Record of Proceedings (cont)                                         AR20080014787



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