IN THE CASE OF:	  

		BOARD DATE: 	        16 June 2009

		DOCKET NUMBER:  AR20080018917


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 recomputation of his U.S. Army Reserve (USAR) retirement points and issuance of a "20-year letter."

2.  The applicant states the USAR did not count his service correctly.

3.  The applicant provides:

	a.  a copy of a hand-written DD Form 108 (Application for Retired Pay Benefits), dated 28 December 2006 and date-stamped 16 August 2007 (the form is annotated in red ink – "NO 20-YR LETTER");

	b.  a copy of a hand-written DD Form 2656 (Data for Payment of Retired Personnel), dated 28 December 2006;

	c.  a copy of a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period 22 April 1969 through 25 November 1970 (his initial period of inducted service in the Army of the United States);

	d.  a copy of Orders 95-67, Headquarters, Second United States Army, Fort Gillem, GA, dated 27 February 1990, discharging him from the USAR effective 1 March 1990;

	e.  a copy of a DA Form 3686 (JUMPS [Joint Uniform Military Pay System]-Army Leave and Earnings Statement) for 1-30 April 1990 showing "21 APR 90 COMP[LETED] 21 YRS SVC BASIC PAY";
	f.  copies of AHRC Form 249-2-E (Chronological Statement of Retirement Points), dated 7 December 2006, and ARPC Form 249-E (Chronological Statement of Retirement Points), dated 17 September 2008, showing 18 years of creditable service; and, under separate cover,

	g.  additional copies of DA Forms 3686 for June 1988, November 1989, and April 1990; copies of DA Form 3053 (Declaration of Retired Pay Benefits Received and Waivers), dated 10 December 1989 and 30 September 1991; a copy of an Honorable Discharge Certificate, dated 1 March 1990; copies of DARP Form 249 (Chronological Statement of Retirement Points), dated 6 September 1987, and ARPC Form 249-E, dated 24 February 2009; and a DA Form 2166-7 (NCO [Noncommissioned Officer] Evaluation Report) for the period December 1988 through November 1989.

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 was inducted into the Army of the United States for 2 years on 22 April 1969.  He was honorably separated on 25 November 1970 after serving 1 year, 7 months, and 4 days.  He was transferred to the USAR to serve the remainder of his mandatory service obligation.  Between 26 November 1970 and 21 April 1971, he was credited with an additional 4 months and 27 days of qualifying service for retirement.

3.  Between 22 April 1974 and 21 April 1975, he earned 73 points and 1 qualifying year for retirement.  This continued through retirement year ending 21 April 1989, when the applicant was credited with 14 more qualifying years.  From 22 April 1989 through 28 February 1990, he was credited with 10 months and 7 days of qualifying service.  He was discharged on 1 March 1990.  From April 1969 to 1 March 1990, he earned 17 years, 10 months, and 7 days of qualifying service.

4.  In the processing of this case, an advisory opinion was obtained from the Transition and Separations Branch, U.S. Army Human Resources Command, St. Louis, MO.  Based on a review of his official records and all documentation provided by the applicant, only 17 years, 10 months, and 7 days of qualifying service for retirement could be verified.  The opinion cited sections 12731-12737 of Title 10, U.S. Code, as authorizing retired pay for Reserve Component (RC) military service.  To be eligible for non-regular retired pay, a Reserve Soldier, upon reaching age 60, must have completed 20 qualifying years of service.  The applicant did not accomplish this.

5.  On 24 February 2009, the applicant was provided a copy of the above advisory opinion for his review and comment.  He did not respond.

6.  One of the many benefits of serving in the Army National Guard or USAR is the opportunity to qualify for a non-regular (or Reserve) retirement.  The basic requirements to qualify for a Reserve retirement are:  attaining 20 qualifying years of service (a qualifying year of service is credited for each year in which the member has earned a minimum of 50 points during his or her anniversary year) and serving the last 8 (as of the date the applicant was discharged) qualifying years in a RC.  Once the member qualifies, the Secretary of the military department concerned notifies the member, in writing, that he/she has completed the eligibility requirements for retirement and receipt of retired pay at age 60    (20-year letter).  Notice is sent to the member within 1 year of reaching eligibility.  RC members generally have three options upon receiving notice of eligibility:  1) remain in the Ready Reserve and continue to perform inactive duty training, annual training, and active duty for training depending on their training and pay category, or remain on the active status list of the Standby Reserve and continue to perform unpaid training for the purpose of accumulating retirement points; 2) transfer to the Retired Reserve; or 3) request discharge from the RC.  Regardless of the option chosen, the member is entitled to receive retired pay at age 60, but must apply for it.

DISCUSSION AND CONCLUSIONS:

1.  The applicant seeks correction of his military records to show he earned 20 qualifying years for non-regular retired pay and issuance of a 20-year letter.

2.  The applicant’s records clearly show that between 22 April 1969 and 1 March 1990, he earned only 17 years, 10 months, and 7 days of qualifying service.  He has provided no information to permit the Board to increase this total to 20 qualifying years.

3.  The applicant cites his leave and earnings statements which show 21 years of service for basic pay purposes.  This figure is based on his Pay Entry Basic Date of 22 April 1969 and simply runs chronologically from that date.  It establishes the particular rate at which a Soldier is paid, but it is not related to qualifying service (i.e., earning 50 points per retirement year) for non-regular retired pay.

4.  Unfortunately, the applicant is not qualified to receive retired pay at age 60.

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)                                         AR20080018917



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ABCMR Record of Proceedings (cont)                                         AR20080018917



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