IN THE CASE OF:
BOARD DATE: 25 JUNE 2009
DOCKET NUMBER: AR20080017698
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 military records be corrected to show he completed 20 years of service for a Reserve Component retirement.
2. The applicant states, in effect, that he has 14 years, 3 months, and 14 days of creditable service for retired pay and that he has 20 years of creditable service at the unit level. He contends that he was placed in a Reserve assignment (U.S. Army Reserve (USAR) Control Group (Reinforcement)) effective 10 October 1992.
3. The applicant provides a National Guard Bureau Form 22 (Report of Separation and Record of Service); orders; and an Army National Guard Current Annual Statement 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 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 was inducted into the Army of the United States on
30 November 1967. He was released from active duty on 9 November 1969 and transferred to the USAR Control Group (Annual Training). He was discharged from the USAR on 8 November 1973. After a break in service, the applicant enlisted in the Army National Guard on 1 August 1977. He was discharged from the Army National Guard on 31 July 1978. After a break in service, the applicant enlisted in the Army National Guard on 18 June 1980. He was ordered to active duty on 30 November 1990 in support of Operation Desert Storm and was released from active duty on 22 April 1991. On 9 October 1992, the applicant was honorably discharged from the Army National Guard and assigned to the USAR Control Group (Reinforcement). On 12 December 1995, the applicant was honorably discharged from the USAR.
3. The applicants Army National Guard Current Annual Statement, prepared on 25 September 2008, shows he completed 14 years, 3 months, and 14 days of qualifying service for retired pay.
4. In the processing of this case, a staff advisory opinion was obtained from the National Guard Bureau. That office recommends disapproval of the applicants request since he only has 14 years, 3 months, and 14 days of creditable service. The opinion points out that the USAR Control Group (Reinforcement) period from 30 November 1969 through 8 November 1973 were inactive years and are not good years for retirement purposes. The opinion cites paragraph 2-5 of National Guard Regulation 680-2 and paragraph 1-4(a) of Army Regulation 135-180.
5. A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal. The applicant did not respond within the given timeframe.
6. Paragraph 2-5 (Minimum point required for a year of satisfactoy service for non-regular retired pay) of National Guard Regulation 680-2 (Automated Retirement Points Accounting System) states that Soldiers must earn a minimum of 50 points from all sources in a retirement year to have that year creditable towards verification of 20 years qualifying service for retired pay.
7. Paragraph 1-4(a) (Retired pay) of Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states that retired pay is pay granted Soldiers and former Reserve Components Soldiers under Title 10, U.S. Code,
section 1331 (at the time), after completion of 20 or more years of qualifying service and upon attaining age 60. This pay is based on the highest grade satisfactorily held at any time during an individual's entire period of service, other than in an inactive section of a Reserve Component.
8. Sections 12731 through 12740 of Title 10, U. S. Code, currently authorize retired pay for Reserve Component military service. Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.
DISCUSSION AND CONCLUSIONS:
1. Although the applicant contends that he has 20 years of creditable service at the unit level, evidence of record shows he completed 14 years, 3 months and 14 days of creditable service for non-regular retirement at age 60.
2. By law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay. Since the applicant did not complete
20 qualifying years of service, there is no basis for granting the applicants request.
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.
_______ _ _XXX______ ___
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.
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