IN THE CASE OF:	  

		BOARD DATE:	       11 June 2009

		DOCKET NUMBER:  AR20090002071 


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, a 20-year Reserve retirement.  

2.  The applicant states, in effect, that he completed 26 years of total service and that time should count for years of service.

3.  The applicant provides an ARPC Form 249-2-E (U.S. Army Reserve Personnel Center Chronological Statement of Retirement Points), dated 5 December 1996; a letter, dated 18 December 2008, from the U.S. Army Human Resources Command, St. Louis, Missouri; an ARPC Form 249-E (U.S. Army Reserve Personnel Command Chronological Statement of Retirement Points), dated 15 December 2008; a DD Form 108 (Application for Retired Pay Benefits), a direct deposit; a DD Form 2656 (Data for Payment of Retired Personnel); orders, dated 4 November 1996; and a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 7 December 1982 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 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 29 January 1949.  He enlisted in the Regular Army on 5 August 1969 and was honorably discharged on 11 June 1979.  After a break in service, he enlisted in the U.S. Army Reserve (USAR) on 13 December 1979 under the Delayed Entry Program.  He again enlisted in the Regular Army on       8 January 1980 and was honorably discharged on 7 December 1982.  The applicant enlisted in the USAR on 8 December 1982.     

3.  Orders, dated 4 November 1996, show the applicant was released from the USAR Control Group (Reinforcement) for completion of 20 or more years of Reserve duty and assigned to the Retired Reserve.

4.  On 3 December 2008, the applicant applied for retired pay.  On 18 December 2008, the U. S. Army Human Resources Command - St. Louis informed him he was not eligible for retired pay as he had completed only 19 years, 10 months, and 8 days of qualifying service for retirement and his last 8 years of qualifying service were not in a Reserve Component.

5.  The applicant's Chronological Statement of Retirement Points, dated 
15 December 2008, shows he completed 19 years, 10 months, and 8 days of qualifying service for retired pay.  The statement shows that the applicant’s last 
7 years of qualifying service were in a Reserve Component during (retirement years ending (RYEs) 12 December 1984, 12 December 1985, 12 December 1986, 12 December 1987, 12 December 1988, 12 December 1990, and 
12 December 1991).  The statement also shows he earned a total of 87 points during RYE 12 December 1991 (44 inactive duty points, 15 membership points, and 28 active duty points) and he earned a total of 31 points during RYE 
12 December 1992 (16 inactive duty points and 15 membership points). 

6.  Title 10, U.S. Code, section 12731 provides that a non-regular service member is entitled, upon application, to retired pay if the person is at least 
60 years of age; had performed at least 20 years of qualifying service the last six years of qualifying service while a member of a Reserve Component, except 
that in the case of a person who completed the service requirements before
5 October 1994, the number of years of such qualifying service under this paragraph shall be eight.  The National Defense Authorization Act of 2005 changed the law, effective 27 April 2005, by removing a minimum Reserve Component service requirement.   

DISCUSSION AND CONCLUSIONS:

1.  Although orders show the applicant was released from the USAR Control Group (Reinforcement) on 4 November 1996 for completion of 20 or more years of Reserve Duty, evidence of record shows he had only completed 19 years, 
10 months, and 8 days of creditable service for a non-regular retirement at age 60.  In addition, only his last 7 years of qualifying service were in a Reserve Component.  It appears the applicant was improperly counseled concerning his eligibility for a Reserve retirement.

2.  The applicant earned 87 retirement points during RYE 12 December 1991.  He earned 31 retirement points during RYE 12 December 1992.  As a matter of equity, it would be appropriate to redistribute 19 retirement points he earned during RYE 12 December 1991 to RYE 12 December 1992 to make it a qualifying year for retirement.

3.  It would then be equitable to show that his 3 December 2008 application for retired pay was approved in a timely manner.

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:

________  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

a. redistributing 19 retirement points the individual earned during RYE 
12 December 1991 to RYE 12 December 1992; 

	b.  correcting his military records to show his 3 December 2008 application   for retired pay was accepted for processing prior to his reaching age 60 on         29 January 2009.




      _______ _   _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)                                         AR20090002071



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ABCMR Record of Proceedings (cont)                                         AR20090002071



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