IN THE CASE OF:	

		BOARD DATE:	9 July 2009  

		DOCKET NUMBER:  AR20090000936 


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 that he be honorably discharged from the United States Army and removed from the United States Army Reserve (USAR) Control Group (Retired) status that he currently has or in the alternative, that the correct status for him be determined.

2.  The applicant states that he does not have sufficient retirement points to have the required 15 years for retirement purposes; however, he believed at the time that he had the required years, which later proved to be in error.  He goes on to state that he is 60 years of age and had accumulated over 19 years of service for pay and was confused as to which method of calculation was used to determine good retirement years.  He also states that he has always served his country and the United States Army as a volunteer. 

3.  The applicant provides a copy of orders transferring him to the Retired Reserve, an ARPC Form 249-E (Chronological Statement of Retirement Points) dated 19 November 2008, and a DA Form 4187 reflecting that he elected transfer to the Retired Reserve. 

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 born on 1 May 1948 and enlisted in the Regular Army on 29 June 1966.  He served until he was honorably released from active duty (REFRAD) on 1 February 1969 and was transferred to the USAR Control Group (Reinforcement) to complete his statutory service obligation.

3.  On 9 September 1970, he again enlisted in the Regular Army.  On 21 February 1971, a Consolidated Statement of Retirement Points was dispatched to the applicant informing him that during the period of 2 February 1969 to 8 September 1970, he had accumulated a total of 24 retirement points for 2 separate retirement years and because he had not met the 50 point minimum for each retirement year, he had no qualifying years for retirement during that period.  He remained in the Regular Army until he was honorably discharged on 20 December 1977.  He had served two tours in Vietnam.

4.  On 22 December 1978, he enlisted in the Arizona Army National Guard (AZARNG) for a period of 1 year.  He was honorably discharged on 21 December 1979.  He again enlisted in the AZARNG on 5 October 1981.  He extended that enlistment on 22 September 1982 for a period of 3 years.  On 8 April 1983, he was honorably discharged from the AZARNG and was transferred to the USAR Control Group (Reinforcement) to fulfill his commitment.

5.  He remained in the USAR and was transferred to the USAR Control Group (Ready) on 4 October 1985.

6.  On 18 May 1994, while assigned to a USAR Special Forces company in       El Paso, Texas, the applicant initiated a DA Form 4187 (Personnel Action) in which he indicated that his unit was being inactivated and he understood that he must be reassigned.  He further indicated that he had 15 years of qualifying service for non-regular retired pay and elected transfer to the Retired Reserve.  The DARP Form 249-E provided with his application at the time was dated 6 May 1994 and indicated that he had 3 years of qualifying service and 19 years and  22 days of total service (Qualifying and Nonqualifying) for Longevity Pay Purposes.  Accordingly, he was transferred to the USAR Control Group (Retired) 


on 14 September 1994 under the Selective Reserve Transition Program Type (XC).  The code "XC" denotes Army Reserve, Army National Guard or Individual Mobilization Augmentee Soldiers who are authorized to receive early qualification for Retired Pay at age 60 (individuals must have at least 15, but less than 20 years of service, and have served the last 6 years in a Reserve unit).

7.  The current ARPC Form 249-E provided by the applicant is dated 19 November 2008 and shows that he has 14 years, 10 months and 21 days of creditable service for retirement .

8.  Title 10, U.S. Code, section 12731a was the temporary special retirement qualification authority.  It provided that, during the period 1 October 1991through 40 September 1999, a member of the Selected reserve who completed at least 15, but less than 20, years of qualifying service as of 1 October 1991 could, upon the request of the member, be transferred to the Retired Reserve.

9.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, U. S. Code, Chapter 67, sections 1331 to 1337.  This regulation specifies, in pertinent part, 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 and that subsequent to 1 July 1949, qualifying service is granted for each year of service that an individual earns 50 or more retirement points.

10.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), chapter 6, provides the eligibility criteria for transfer to the Retired Reserve.  It provides, in pertinent part, that assignment to the Retired Reserve is authorized, provided that eligible Soldiers request transfer and have reached the age of 37 and have completed a minimum of 8 years of qualifying Federal service or have reached the age of 37, completed a minimum of 8 years of qualifying Federal service and served at least 6 months of active duty in time of war or national emergency.  

11.  Section 12731(d) of Title 10, U. S. Code, states that the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay.  The notice shall be sent, in writing, to the person concerned within one year after the person completes that service.    Section 12738(a) states that after a person is notified that he or she has completed the years of service required for eligibility for retired pay, the person’s 


eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service unless it resulted directly from the fraud or misrepresentation of the person.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was led to believe that he had at least 15 qualifying years of service for retired pay purposes has been noted and appears to have some merit.

2.  The DARP Form 249-2-E that was attached to the applicant's request for transfer to the Retired Reserve was dated 6 May 1994 and indicated that he had 3 qualifying years of service for retirement, which was obviously incorrect.  It also indicated that he had 19 years and 22 days of total service (Qualifying and Nonqualifying for longevity pay purposes).  However, his request was approved despite the fact that in reality he did not have 15 years of qualifying service for retired pay purposes.  It appears his unit misunderstood his ARPC Form 249-2-E to show he had over 19 years of qualifying service, whereas he had only           14 years, 10 months, and 21 days of creditable service for Retired Pay purposes and he was just over 46 years of age at the time. 

3.  Therefore, it is reasonable to presume that had the applicant known that he did not have enough creditable service for Retired Pay purposes, he would not have elected to transfer to the Retired Reserve until he had acquired the 41 days necessary to qualify.  Additionally, it also appears that a service computation was not done by the authorities who approved his request to ascertain that he was in fact eligible to qualify for a 15-year retirement. 

4.  As a result of the failure to verify the applicant's creditable service for retired pay purposes, the applicant was not informed that he was not qualified for a non-regular retirement until he had reached age 60 and was no longer able to acquire the points he needed to qualify. 

5.  While it is recognized that it is an individual responsibility to ensure that retirement point credits are properly accounted for, it is also the responsibility of the Department to timely notify individuals who apply for special programs such as the Temporary Special Retirement Authority (15-year Retirement) that they are not qualified and must continue to serve or be discharged.

6.  In the applicant's case, had he been timely notified that he did not qualify for the program at the time, he could have sought reassignment in order to obtain additional points to qualify for a non-regular retirement.  However, by the time he was notified, it was too late for him to acquire the points necessary to qualify.  
7.  Accordingly, it would be in the interest of justice to show the applicant was issued a 15-year letter, effective 14 September 1994, and that he be authorized a         non-regular retirement effective 1 May 2008, based on his actual service computation.

8.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant was issued a 15-year letter effective 14 September 1994 and that he be authorized a non-regular retirement effective 1 May 2008, based on his actual service computation. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to voiding his transfer to the Retired Reserve.  

3.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States during the Vietnam War are deeply 


appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   __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)                                         AR20090000936





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ABCMR Record of Proceedings (cont)                                         AR20090000936



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