IN THE CASE OF:	  

		BOARD DATE:	        25 AUGUST 2009

		DOCKET NUMBER:  AR20090003839 


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 correction of item 12 (Record of Service) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 September 1989 to show he entered active duty on 29 June 1974.  He also requests, in effect, correction of his records to show he completed 20 years of qualifying service for a Reserve retirement and that he be granted retired pay benefits.   

2.  The applicant states that item 12 on his DD Form 214 is incorrect and should reflect 29 June 1974 as the date he entered active duty.  He argues he has exhausted all other agencies in his attempt to resolve this matter to include the Transition and Separations Branch, U.S. Army Human Resources Command and he outlines the events regarding his request.  On 23 June 1968, he entered the New York Army National Guard (NYARNG) as a traditional guardsman and was honorably discharged on 8 June 1974.  He contends he completed a total of 6 years and 6 days with more than the minimum of 50 retirement points for each year he served.  The next day after his discharge from the NYARNG, he enlisted in the Regular Army.  He alleges that his DD Form 214 incorrectly reflects he entered active duty on 9 January 1978.  In addition, he alleges that he has served a total of 21 years, 3 months, and 3 days of qualifying service in the NYARNG and Regular Army for retired pay benefits.  

3.  The applicant provides the following documents in support of his application:  

* Two letters of response, dated 20 February 2009 and 19 December 2008, 
from the Chief, Transition and Separations Branch, U.S. Army Human Resources Command, St. Louis, MO (HRC-STL); 
* Letter, dated 11 February 2009, addressed to the Transition and 
Separations Branch, HRC-STL; 
* NGB Form 22 (National Guard Bureau Report of Separation and Record 
of Service); 
* DD Form 214 for the period ending 8 January 1978; 
* NGB Form 23 (Retirement Credits Record) for the retirement year 
covering 23 June 1969 to 23 June 1974;
* DD Form 214 for the period ending 29 September 1989; 
* DA Form 2-1 (Personnel Qualification Record - Part II); 
* DD Form 108 (Application for Retired Pay Benefits), dated 17 November 
2008; 
* DD Form 2656 (Data for Payment of Retired Personnel); and 
* Standard Form 1199A (Direct Deposit Sign-Up Form).  

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 March 1948.  He enlisted in the NYARNG on 23 June 1968 and was discharged on 28 June 1974.  He was issued an NGB Form 22 which shows he completed 6 years and 6 days total service during this period.  

3.  His Army National Guard Retirement Credits Record for the retirement year beginning 23 June 1968 and ending on 28 June 1974 shows he completed 
6 years of qualifying service for retired pay at age 60 during this period. 

4.  The applicant enlisted in the Regular Army on 29 June 1974 and was discharged on 8 January 1978 for immediate reenlistment.  He was issued a DD Form 214 for the period ending 8 January 1978 which shows he entered active duty on 29 June 1974 and completed 3 years, 6 months, and 10 days of active military service during this period.

5.  The applicant reenlisted on 9 January 1978 and continued to serve on active duty until he was honorably discharged from active duty on 20 September 1989 at the expiration of his term of service.  

6.  Item 12a (Date Entered Active Duty This Period) on the applicant's DD Form 214 for the period ending 29 September 1989 shows he entered active duty on 9 January 1978.  At the time of his discharge, he had completed 11 years, 8 months, and 21 days of active military service during the period covered by the report, 3 years, 10 months, and 23 days total prior active service, and 5 years 7 months and 23 days total prior inactive service (a total of 21 years, 3 months, and 7 days of military service).  

7.  The applicant reached age 60 on 29 March 2008.

8.  The applicant provided a letter, dated 19 December 2008, from the Chief of Transition and Separations Branch, U.S. Army Human Resources Command, 
St. Louis, MO (HRC-STL).  This memorandum informed the applicant that Title 10, U. S. Code, Chapter 67, authorizes retired pay for current and former members of the Reserve Components who have reached age 60 and completed a minimum of 20 years of qualifying service and required that the last eight years of qualifying service must be performed as a member of a Reserve Component.  A review of the applicant's records showed he had completed the minimum years of qualifying service, but lacked additional qualifying service as a Reserve Soldier to satisfy the requirement of the last 8 years of qualifying service in a Reserve Component.   

9.  The applicant also provided a letter, dated 20 February 2009, from the Chief of Transition and Separations Branch, HRC-STL.  This memorandum informed the applicant that his military records did not show he had completed 20 qualifying years of service and was ineligible to receive retired pay.  He was advised to contact the Adjutant General of the state he performed his last unit training and obtain a state "Close Out" NGB Bureau Form 23b (Statement of Service).  

10.  A corrected copy of the applicant's Chronological Statement of Retirement Points, dated 18 August 2009, shows he completed 21 years, 3 months, and 8 days of qualifying service for retired pay.  The applicant's retirement years beginning 29 June 1974 and ending on 8 January 1978 were corrected to include his service in the Regular Army.  

11.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  The version in effect at the time states, in pertinent part, that a DD Form 214 will not be prepared to cover a period of service for which a previous DD Form 214 has been issued.  It also states that effective 1 October 1979, DD Form 214s would no longer be issued for immediate reenlistments and that all service would be continuous from the date the last DD Form 214 was issued.  Prior to 1 October 1979, a DD Form 214 was prepared when a Soldier was discharged for the purpose of immediate reenlistment.

12.  Army Regulation 635-5 directs that the beginning date of the continuous period of active duty will be entered in item 12a for issuance of this DD Form 214, for which a DD Form 214 was not previously issued.  

13.  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.  The applicant contends that item 12 on his DD Form 214 is incorrect and should reflect 29 June 1974 as the date he entered active duty.  

2.  The evidence of record shows the applicant enlisted in the Regular Army on 29 June 1974 and was discharged on 8 January 1978 for the purpose of immediate reenlistment.  He was issued a DD Form 214 which properly covers this period of service.  A copy of this DD Form 214 will be provided to the applicant.  

3.  The evidence of record shows the applicant reenlisted on 9 January 1978 and was discharged on 29 September 1989.  He was issued a DD Form 214 which correctly reflects the date he entered active duty as 9 January 1978 in item 12a, the date of the first day of the last immediate reenlistment.



4.  Since the applicant was issued a DD Form 214 which covers his service beginning on 29 June 1974, there is no basis for correcting item 12a of his DD Form 214 for the period ending 29 September 1989 to reflect 29 June 1974.  

5.  Although the applicant completed 21 years, 3 months, and 3 days of creditable service for a non-regular retirement at age 60, his last eight years of qualifying service were not in a Reserve Component.  However, he did complete over 20 years of qualifying, military service.  The law was later changed to remove the minimum Reserve Component service requirement.  As a matter of equity, it would be appropriate to correct the applicant's records by showing he served his last eight qualifying years in a Reserve Component, making him eligible for a Reserve retirement.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____XX____  ___XX_____  __XX______  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.  converting the required number of his Regular Army qualifying years to qualifying Reserve Component service; 

	b.  showing he was eligible for a Reserve retirement, and that he applied for Reserve retired pay, prior to reaching age 60; and

	c.  paying to him any and all retired pay due as a result of the above corrections.  

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 amending item 12 on his DD Form 214 for the period ending 29 September 1989 to show he entered active duty on 29 June 1974.




      _______ _   __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)                                         AR20090003839





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ABCMR Record of Proceedings (cont)                                         AR20090003839



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