IN THE CASE OF:
BOARD DATE: 30 December 2008
DOCKET NUMBER: AR20080017193
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, a 20-year retirement.
2. The applicant states that he served six years and he intended to serve
20 years but unknowingly he suffered from Post Traumatic Stress Disorder (PTSD). He contends that he needs to be listed as retired so he will qualify for Combat Related Special Compensation (CRSC).
3. The applicant provides a Department of Veterans Affairs Rating Decision, dated 13 March 1995, which shows that service connection for PTSD was granted (30 percent).
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 enlisted in the Regular Army on 19 September 1969 and trained as a wheel vehicle repairman. On 2 April 1972, he was released from active duty and transferred to the U.S. Army Reserve. He had completed 2 years, 6 months, and 14 days of creditable active service.
3. The applicant enlisted in the Army National Guard on 3 December 1972. On 14 February 1974, he was honorably discharged for enlistment in the Regular Army.
4. The applicant enlisted in the Regular Army on 15 February 1974 for a period of 3 years. On 14 February 1977, he was honorably discharged. He completed 3 years of creditable active service.
5. The applicant enlisted in the Army National Guard on 7 February 1980. On
6 February 1981, he was honorably discharged.
6. Records show the applicant completed a total of 5 years, 6 months, and
14 days of creditable active service.
7. There is no evidence of record which shows the applicant completed 20 years of active duty.
8. Army Regulation 635-200, chapter 12 sets the policies and procedures for voluntary retirement of Soldiers because of length of service. In pertinent part, it states that a Soldier who has completed 20 years active federal service and who has completed all required service obligations is eligible to retire.
9. The National Defense Authorization Act (NDAA) for Fiscal Year 2003 granted a special payment to certain disabled retirees - CRSC. The initial eligibility criteria was for a retired member who met each of four conditions to have been considered to meet the Preliminary CRSC Criteria, to include having 20 or more years of service in the Uniformed Services for the purposes of computing the amount of retired pay. A retired Reserve with retired pay computed under the provisions of chapter 1223 of Title 10, U. S. Code, must have had 20 or more years of service as defined by Title 10, U. S. Code, section 12733.
10. The NDAA for Fiscal Year 2008 was signed into law on 28 January 2008. It expanded the eligibility of CRSC to include anyone receiving military retired pay.
DISCUSSION AND CONCLUSIONS:
Evidence of record shows the applicant completed 5 years, 6 months, and 14 days of creditable active service. The applicant's intention to serve 20 years was admirable; however, since there is no evidence of record which shows the applicant actually completed 20 years of active duty there is no basis for granting the applicants request for a length of service retirement.
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) AR20080017193
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