IN THE CASE OF:	  

		BOARD DATE:	       30 APRIL 2009

		DOCKET NUMBER:  AR20090000983 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the Board’s denial of the applicant's request to have his records corrected to reflect a 20-year Reserve retirement with all pay and allowances.

2.  Counsel states that the applicant is entitled to correction of his records because his retirement points were improperly calculated between the dates of 29 September 1969 through 29 September 1973.  He argues that during this period of service, the applicant should have been credited with 4 years of service instead of 3 years, 6 months, and 15 days.  He maintains that the retirement points, as reported on the applicant's ARPC Form 249-E (Chronological Statement of Retirement Points), do not accurately reflect each 1-year period of his qualifying service under Title 10, U.S. Code, section 12732(a)(2).

3.  The counsel states that the ARPC Form 249-E improperly calculated the       1-year period based on the applicant's component instead of combining the total retirement points for his Regular Army (RA) and Army National Guard (ARNG) service.  He offers that the evidence shows that the applicant served continuously from September 1969 through September 1973 in the RA and the ARNG and earned a combined total of 410 retirement points.  The counsel concludes that justice demands that the applicant's records be corrected to reflect that he obtained 20 qualifying years of service.
4.  Counsel provides a new argument and the applicant's ARPC Form 249-E dated 22 March 2007.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR200700008925, dated 27 November 2007.

2.  The ARPC Form 249-E was discussed in the applicant's previous case, Docket Number AR200700008925, page 3, paragraph 6.  The following additional information from the ARPC Form 249-E for the period covering 29 September 1969 through 29 September 1973 is provided by category (Retirement Year (RY) Beginning Date, RY Ending Date, Status or Component, Membership Points, Active Duty Points, Qualifying for Retirement Years/Months/Days), and Total Points Creditable).

	a.  29 September 1969 to 12 April 1970, RA, Membership Points = 0, Active Duty Points = 196, RYs = 6 months and 15 days, Total Points = 196;

	b.  13 April 1970 to 12 April 1971, ARNG, Membership Points = 15, Active Duty Points = 0, RYs = 1, Total Points = 60;

	c.  13 April 1971 to 12 April 1972, ARNG, Membership Points = 15, Active Duty Points = 16, RYs = 1, Total Points = 76;

	d.  13 April 1972 to 12 April 1973, ARNG, Membership Points = 15, Active Duty Points = 15, RYs = 1, Total Points = 74;

	e.  13 April 1973 to 13 July 11973, ARNG, Membership Points = 4, Active Duty Points = 0, RYs = 0,Total Points = 4; and

   f.  14 July 1973 to 26 June 1974, ROTC, Membership Points = 0, Active Duty Points = 0, RYs = 0, Total Points = 0.

3.  Title 10, U.S. Code, section 12732 (Entitlement to non-regular retired pay: computation of years of service), subsection (a)(2), provides guidelines for computation of years of service for entitlement to retired pay.  This provision of law allows one point for each day of active service or full-time service while performing annual training duty or while attending a prescribed course of instruction at a service school.  Each 1-year period, after 1 July 1949, in which the person has been credited with a least 50 points is considered a qualifying RY.

4.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of retired pay to Soldiers and former Reserve Component Soldiers.  Per paragraph 2-8, qualifying service, as it pertains to this case, is defined as service performed in an active status in a Reserve Component or in active Federal service.  After 30 June 1949, a Reservist must earn a minimum of 50 retirement points each RY to have that year credited as qualifying service.  When a person is in an active status for a period less than a full RY, a minimum number of retirement points is required to be earned in order to have that period credited as qualifying service.

5.  Army Regulation 140-85 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) specifies the number of points that may be credited to a Soldier during a RY.  The regulation states, in pertinent part, that one retirement point per day will be granted for the period of active duty from date of entry through the date of release from active duty.

6.  Paragraph 1-4 of the same regulation specifies the criteria for establishing or changing the RY for Soldiers in an active Reserve status (Ready or active Standby).  The regulation states, in pertinent part, that after 1 July 1949, the RY beginning date will be as follows:  (1) date of initial entry or reentry (after a break in service) into a Reserve Component; (2) date of entry into Army of the United States without component when Soldier later enters (without a service break) an active Reserve status on or after 1 January 1969; (3) date of transfer to the Reserve Component upon release from active duty in a Regular Component; and (4) date of transfer from an inactive Reserve status to an active Reserve status.  The RY once established will not change as long as the Soldier has continuous service in an active status in a Reserve and/or Regular Component.  It will change when there is a break in active status.

DISCUSSION AND CONCLUSIONS:

1.  In the previous case it was noted that the applicant did not claim that his retirement points were improperly calculated, but his contention was that he was told in writing that he was retired.  His counsel now states that the applicant's retirement points were inaccurately calculated between the dates of 29 September 1969 and 29 September 1973.

2.  The counsel maintains that Title 10, U.S. Code, section 12732, allows for the combining of the applicant's RA and ARNG service and that the combination from September 1969 to September 1973 would authorize him over 4 qualifying RYs.  A review of Title 10, U.S. Code, section 12732, and the cited regulations do not support the counsel’s argument.  

3.  Title 10, U. S. Code, section 12732 pertains to computation of years of service for non-regular retirement.  This section did not apply to the applicant until he entered a Reserve Component status.  Therefore, Army Regulation 140-85, which  explains four different categories for establishing or changing the RY, properly applies to the applicant.  More specifically, the regulation states that an RY date will be changed upon an initial enlistment in the RA and a subsequent transfer to the ARNG or U.S. Army Reserve.  Therefore, when the applicant transferred from the RA to a Reserve Component status his RY was properly changed.  It appears that both his retirement points and his RY are properly reflected on the ARPC Form 249-E.

4.  Therefore, the overall merits of the case, including counsel's argument, are insufficient as a basis for the Board to reverse its previous decision.

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 to amend the decision of the ABCMR set forth in Docket Number AR200700008925, dated 27 November 2007.



      ________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.

ABCMR Record of Proceedings (cont)                                         AR20090000983



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ABCMR Record of Proceedings (cont)                                         AR20090000983



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