IN THE CASE OF:	  

		BOARD DATE:	       17 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090005359 


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 of his DARP Form 249-2-E (Chronological Statement of Retirement Points) to show 20 good years of service.

2.  The applicant states, in effect, that he knows some of his retirement points were credited to another Soldier for a number of years based on a wrong Social Security Number.  

3.  The applicant provides, in support of his application, copies of his honorable discharge certificate, certificates of training, and his DD Form 214 (Certificate of Release of Discharge from Active Duty) for the period ending 5 February 1990.

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 personnel records show that he enlisted in the Regular Army (RA) on 6 February 1986 for a four-year period of service.  He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 88H (Cargo Specialist).  The highest rank/grade he attained during this enlistment period was specialist (SPC)/E-4.

3.  On 5 February 1990, he was honorably released from active duty and transferred to the 195th Transportation Detachment (Contract Supervision), Orlando, FL, a U.S. Army Reserve (USAR) unit.  He had completed four years of active duty service this period. 

4.  On 2 May 1993, the applicant reenlisted in the USAR for 6 years.

5.  On 9 February 1994, Headquarters, 143rd Transportation Command, Orlando, published Orders 16-1 reassigning the applicant from the 195th Transportation Detachment to the U.S. Army Personnel Center (Reinforcement), effective 8 February 1994.  The reason for the reassignment cited on the order was "voluntary transfer." 

6.  On 4 May 1999, U.S. Army Reserve Personnel Center (ARPERCEN) published Orders D-05-927002 discharging the applicant from the USAR.

7.  In the preparation of this case, ARPERCEN issued the applicant's ARPC Form 249-E (Chronological Statement of Retirement Points), dated 13 May 2009, with a Retirement Year Ending (RYE) month and date of "05 02," which represents 5 February, the established month and day of the applicant's retirement year.  This statement shows that the applicant accumulated the following nonregular qualifying points for retirement.

	a.  from 6 February 1990 to 5 February 1991, he had 29 inactive duty points, 15 membership points, and 39 active duty points.  He was credited with one qualifying year for retirement with 82 total creditable points.

	b.  from 6 February 1991 to 5 February 1992, he had 41 inactive duty points, 15 membership points, and no active duty points.  He was credited with one qualifying year for retirement with 56 creditable points.

	c.  from 6 February 1992 to 5 February 1993, he had 45 inactive duty points, 15 membership points, and 15 active duty points.  He was credited with one qualifying year for retirement with 75 creditable points. 

	d.  from 6 February 1993 to 5 February 1994, he had 32 inactive duty points, 15 membership points, and 15 active duty points.  He was credited with one qualifying year for retirement with 62 creditable points.

8.  This same statement shows the applicant had 8 years of qualifying service for nonregular retirement with 1,815 creditable points.  This statement includes the applicant's four years of active duty service.  

9.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, U.S. Code, chapter 67, sections 1331 to 1337.  This regulation specifies, in pertinent part, that to be eligible for retired pay an individual must have completed a minimum of 20 years or more of qualifying service, attained age 60, and eight years service in the Reserve component. Subsequent to 1 July 1949, qualifying service is granted for each year of service an individual earns 50 or more qualifying retirement points.  

10.  Paragraph 2-10 of Army Regulation 138-180 states that after 30 June 1949, qualifying points for nonregular retirement are credited based on one point for each day of active duty and 15 points per year for membership in the Reserve Component.  Additionally, inactive duty points are credited for participation in each authorized unit drill or period of military instruction.   No more than 60 inactive duty points can be credited for retirement within one year. 

11.  Sections 12731 through 12739 of Title 10, U.S. Code, authorize 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.  

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant completed eight qualifying years for nonregular retirement with four years credited for his active duty service.  Further, the evidence shows that the applicant voluntarily requested a transfer to the USAR (Reinforcement) on 9 February 1994. 
2.  There are no orders transferring the applicant to a troop program unit after 9 February 1994.  In fact, the applicant's chronological statement of retirement points shows that he earned no inactive or active duty points from this date to his separation from the USAR on 4 May 1999.

3.  As such, there is no evidence to support the applicant's contention that his chronological statement of retirement points is in error.  

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  

5.  The applicant has failed to submit evidence that would satisfy that requirement.

6.  In view of the foregoing, there is insufficient basis to grant the applicant's request to correct his record to show 20 years of qualifying service for nonregular retirement. 

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 for correction of the records of the individual concerned.



      _______ _   ___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)                                         AR20090005359



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ABCMR Record of Proceedings (cont)                                         AR20090005359



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