IN THE CASE OF:	  

		BOARD DATE:	  10 September 2009

		DOCKET NUMBER:  AR20090001532 


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, correction to his Chronological Statement of Retirement Points (AHRC Form 249-2-E) to show he completed 21 years and 8 months of qualifying service for retirement.   

2.  The applicant states, in effect, that his statement only shows he completed 19 years, 7 months, and 10 days of qualifying service for retirement.  He also states, in effect, he was drafted and served in the Army from 22 April 1969 to 23 May 1971, spent 10 months and 23 days in Vietnam, and his service obligation was up on 21 April 1975, this a total of 6 years.  He further states in between those 6 years he joined the Army National Guard (ARNG) for two years. He moved to Ohio and joined the United States Army Reserve (USAR) and served from 7 June 1979 to 16 March 1995, a total of 15 years and 8 months.  If his 6 year obligation is added to his USAR time, it would total 21 years and 8 months.  The time from 7 June 1979 to 16 March 1995 totals 15 years and 8 months, plus his 6 year obligation, totals 21 years and 8 months.  

3.  In support of his application, the applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), his National Guard Bureau (NGB) Form 23 (ARNG Retirement Credits Record), his 2007 and 2008 Chronological Statement of Retirement Points, his DD Form 108 (Application for Retired Pay Benefits), and a DD Form 2656 (Data for Payment of Retired Personnel).


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's military record shows he was born on 12 March 1949.  He was inducted into the Army of the United States (AUS) on 22 April 1969.  He was honorably released from active duty, in pay grade E-1, on 23 March 1971.  He was credited with 1 year, 11 months, and 2 days net active service.  He was transferred to the USAR Control Group (Annual Training) with a terminal Reserve obligation date of 21 April 1975.   

3.  The applicant served in the USAR from 24 March 1971 through 1 December 1974, a period of 3 years, 8 months, and 8 days.  He enlisted in the Tennessee ARNG (TNARNG) on 2 December 1974 for 2 years.  He was honorably separated from the TNARNG on 1 December 1976, at the expiration of his term of service, and was issued an NGB Form 22 (Report of Separation and Record of Service in the ARNG).  He was credited with 2 years net service.  He also was credited with 7 years, 7 months, and 10 days of total service for pay purposes (the total of his service of 1 year, 11 months, and 2 days in the AUS; his service of 3 years, 8 months, and 8 days in the USAR; and his service of 2 years in the TNARNG).

4.  The applicant submitted a copy of his NGB Form 23 (verified on 30 December 1980) that shows he was an enlisted member in the USAR from 22 April 1974 to 1 December 1974 and a member in the ARNG from 2 December 1974 to 1 December 1976.  

5.  The applicant had a break in service from 2 December 1976 to 6 June 1979, a period of 2 years, 6 months, and 5 days.


6.  The applicant again enlisted in the USAR on 7 June 1979 and continuously served through several reenlistments.  

7.  The applicant was honorably separated from the USAR on 16 March 1995.

8.  The applicant's Chronological Statement of Retirement Points, dated 12 September 1994, shows he was credited with 17 years, 7 months, and 10 days of qualifying years for retirement as of his RYE 6 June 1994 and 21 years, 3 months, and 5 days total service (qualifying and non-qualifying) for longevity pay purposes.  The statement also shows he earned less than 50 points for qualifying service for RYEs 21 April 1972, 21 April 1973, and         21 April 1975.  This statement does not show RYE 21 April 1974.  The statement further shows he earned less than 50 points for a qualifying year during RYE       6 June 1989.  

9.  The applicant's Chronological Statement of Retirement Points, dated 1 February 2007, shows he was credited with 19 years, 7 months, and 10 days qualifying years for retirement as of RYE 6 June 1995.  The statement also shows he earned less than 50 points for qualifying service for RYEs 21 April 1972, 21 April 1973, and 21 April 1975.  This statement does not show RYE     21 April 1974.  The statement further shows he earned a qualifying year during RYE 6 June 1989.  

10.  The applicant's Chronological Statement of Retirement Points, dated 11 December 2008, shows he was credited with 19 years, 9 months, and 10 days qualifying years for retirement as of 16 March 1995.  The statement also shows he was credited with 11 months and 2 days qualifying for RYE 23 March 1971 (the date of his release from active duty).  He was credited with 29 days from for RYE 21 April 1971.  

11.  The applicant also submitted a copy of his DD Form 108, dated 12 November 2008, that shows he submitted an application for retired pay benefits to begin on his 60th birthday on 12 March 2009.

12.  A staff member of the Retirements and Annuities Branch, Human Resources Command, St. Louis, Missouri, verified that the applicant's retirement application 
was received in that branch on 1 December 2008.  He was sent the denial on 11 December 2008, based on the fact he had not completed a minimum of 20 years of qualifying service.


13.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Non-Regular Service), indicates, in pertinent part, that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and, (3) 
at the time served the last 8-years of his or her qualifying service as a Reserve Component Soldier.  

14.  Title 10, U.S. Code, sections 12731 through 12739, authorizes 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.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.  The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year, and which count as qualifying years of service for retirement benefits at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was issued a statement of retirement points, dated 12 September 1994, showing a credit of 17 years, 7 months, and 10 days of qualifying service for retirement.  He was discharged from the USAR on 16 March 1995.  He was issued a statement, dated 1 February 2007, showing a credit of 19 years, 7 months, and 10 days of qualifying service for retirement as of his RYE 6 June 1995.  He was again issued a statement, dated 11 December 2008, showing a credit of 19 years, 9 months, and 10 days of qualifying service as of his RYE 16 March 1995.  

2.  The applicant contends that his total years of service should total 21 years and 8 months, thereby qualifying him for retired pay.  It appears the applicant believed that he had completed the necessary years of service for retired pay at age 60 based on his total years of service.  The statement, dated 12 September 1994, he was issued shows he was also credited with 21 years, 3 months, and 5 days of total service (qualifying and non-qualifying) for longevity pay purposes. On 11 December 2008, the applicant was denied retirement due to the fact he had not completed 20 years of qualifying service.  

3.  The applicant is currently 60 years of age and is not eligible to return to an active status to earn additional retirement points.  The evidence shows he earned sufficient excess retirement points (76 points) during RYE 21 April 1976 that can be redistributed to his unqualifying RYE 21 April 1975.  It would be equitable to 

redistribute 15 points RYE 21 April 1976 to RYE 21 April 1975, giving him a total of 50 creditable points for that RYE and a qualifying year.  This redistribution of retirement points would not involve awarding the applicant additional retirement points, entitling him to receive additional drill pay, or adding an additional period of service.  The result of this action would provide the applicant with over 20 years of qualifying service for retirement and entitle him to receive retired pay.

4.  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:

	a.  redistributing 15 excess retirement points from RYE 21 April 1976 to RYE 21 April 1975 and showing this RYE as qualifying for retirement; 

	b.  correcting his records to show that he has completed sufficient qualifying service for retirement at age 60; and

     c.  showing he applied for retired pay in a timely manner, and that his application was received and approved by the appropriate office, to be effective when he reached age 60.


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 showing he had a total of 21 years and 8 months of qualifying service for retirement.




      _______ _  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)                                         AR20090001532



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ABCMR Record of Proceedings (cont)                                         AR20090001532



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