IN THE CASE OF:	  

		BOARD DATE:	  1 September 2009

		DOCKET NUMBER:  AR20090004919 


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 his military records to show that he completed 20 qualifying years of service for a non-regular Army retirement.

2.  The applicant states that he was improperly transferred from the United States Army Reserve Control Group (Reinforcement) when he attained age 60 and was placed in the Retired Reserve.  At the time, he had only completed 
19 years, 4 months, and 4 days of qualifying service for a non-regular retirement.  He requested an exception to policy to be retained in the Army Reserve for an additional 8 month period, but it was denied. 

3.  Item 17 (Remarks) of the applicant’s DD Form 149 (Application for Correction of Military Records) states the applicant participated in the Voluntary Separation Incentive (VSI) Program and that he has received annual VSI installments of $8271.90 since 1995.  He is aware that these VSI payments will be recouped by the Defense Finance Accounting Service (DFAS) from any future monthly retirement income he may receive.  

4.  The applicant provides in support of his application copies of his retirement orders; four DD Forms 214 (Certificate of Release or Discharge from Active Duty); extract of Title 10, United States Code, section 1179, Volunteer Selection Form/30 Day Waiver; DA Form 160 (Application for Active Duty); DA Form 7349 (Annual Medical Certificate); and a memorandum requesting exception to policy for reenlistment and electronic communications.


CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 21 January 1947, and he enlisted in the Regular Army on 3 January 1967.  He was released from active duty and transferred to the United States Army Reserve Control Group (Reinforcement) on 18 August 1969.  He was honorably discharged on 2 January 1973.

2.  The applicant had a break in service from 3 January 1973 to 15 May 1984.  He enlisted in the United States Army Reserve Delayed Entry Program on 16 May 1984 and enlisted in the Regular Army on 7 August 1984.  He remained in the Regular Army until 2 January 1995 when he was honorably discharged under the Voluntary Separation Incentive program.  

3.  The applicant enlisted in the United States Army Reserve Control Group (Reinforcement) on 3 January 1995 and served until 31 January 2007.  During this period of service, he was ordered to active duty twice in support of combat operations.

4.  On 21 January 2007, the applicant turned age 60.  On 1 February 2007, he was transferred to the Retired Reserve.  He had attained the rank of sergeant first class, pay grade E-7 and had completed 19 years, 4 months, and 4 days of qualifying service for retirement.

5.  An ARPC Form 249-E (Chronological Statement of Retirement Points), dated 
4 February 2009, shows the applicant completed a total of 19 years, 4 months, and 4 days of qualifying service for retirement.  From 16 May 2002 through 
15 May 2004, he earned more than the minimum number of points required for a qualifying year of service for retired pay.

6.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Services Division, United States Army Human Resources Command (HRC), St. Louis, Missouri.  The opinion stated the applicant repeatedly made attempts to obtain an extension waiver beyond age 60 and that he was improperly counseled by HRC, St. Louis.  Due to no fault of his own, the applicant was not permitted to continue his service for an additional 8 months beyond age 60 in order to complete the 20 qualifying years required for a non-regular retirement.  Based on the applicant's honorable service throughout his 
19 year military career, the opinion recommended that his Chronological Statement of Retirement Points be adjusted by redistributing retirement points from a previously qualifying year which may qualify him for a full 20-year non-regular retirement and allow him to file a claim for a 20-year retirement with payment in arrears as allowed by law.

7.  On 19 July 2009, the applicant concurred with the advisory opinion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been permitted to extend his service for a period of 8 months in order to qualify for a non-regular retirement. 

2.  The evidence shows the applicant was improperly counseled and denied a waiver to remain in the service for a period of 8 months to qualify for retired pay at age 60.

3.  As a matter of equity, the applicant's ARPC Form 249-E should be corrected by: 

   a.  deleting 29 inactive duty points from the period 16 May 2003 to 
15 May 2004; 
   
   b.  deleting 6 inactive duty points from the period 16 May 2002 to 
15 May 2003; 
   
   c.  adding 35 inactive duty points to the period 16 May 2000 to 15 May 2001, thus showing he had a qualifying year for retirement during retirement year ending 15 May 2001; and
   
   d.  adjusting all entries affected by these changes.
 
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____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.  deleting 29 inactive duty points from the period 16 May 2003 to 
15 May 2004; 
   
   b.  deleting 6 inactive duty points from the period 16 May 2002 to 
15 May 2003; 
   
   c.  adding 35 inactive duty points to the period 16 May 2000 to 15 May 2001 and showing he had a qualifying year for retirement during retirement year ending 15 May 2001; 
   
   d.  adjusting all entries affected by these changes; 

   e.  showing the applicant was eligible to apply for retired pay at age 60, that he so applied prior to turning age 60, and that his application was approved and processed in a timely manner; and

     f.  paying the applicant all retired pay due retroactive to the date he turned age 60.




      _______ _   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)                                         AR20090004919



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ABCMR Record of Proceedings (cont)                                         AR20090004919



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