Search Decisions

Decision Text

ARMY | BCMR | CY2009 | 20090006010
Original file (20090006010.txt) Auto-classification: Denied

		BOARD DATE:	  17 September 2009

		DOCKET NUMBER:  AR20090006010 


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 15-year letter.  

2.  The applicant states, in effect, that he was assigned to the U.S. Army Reserve (USAR) Control Group (Reinforcement) from 25 December 1989 to 3 September 1993.  He contends that during this time he was in contact with the New York Army National Guard, the New Jersey Army National Guard, and the USAR in St. Louis seeking possible units to which he could be assigned, and trying to correct certain errors in his record to include correct address, missing checks, and confirmation of creditable years of service for retirement.  He indicates that he became aware of a new retirement program, that he was advised it was his last unit's responsibility to certify his creditable years of service and prepare retirement paper work and issue a 15-year letter, and that St. Louis could do nothing without this documentation.  He again requested the required documentation from the New York Army National Guard, that he received assurances that it would be produced and sent to St. Louis, and that he satisfied the service requirements for retirement. 

3.  The applicant states, in effect, that he was ordered to be placed in the Retired Reserve in 1993.  He had completed 18 years of service, and he presumed the necessary paperwork for retirement had been processed.  However, in January 2009, he was denied retirement benefits because he had not completed the required 20 years.  He points out that the New York Army National Guard has certified that he met the service requirements for retirement under Title 10 U.S. Code 12731a and they are willing to issue a Notification of Eligibility for Retired Pay at Age 60 with a 15 Year Service letter.  
4.  The applicant provides numerous documents outlined in Attachment 2 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 appointed a second lieutenant in the USAR on 
19 December 1970.  He entered active duty on 30 December 1970 and was released from active duty on 15 May 1975 and transferred to the USAR Control Group (Standby).  He was appointed a Reserve officer in the Army National Guard on 25 September 1975.  He served in the U.S. Coast Guard from 
7 August 1979 to 10 June 1982.  He served in the U.S. Coast Guard Reserve from 11 August 1982 to 26 February 1986.  On 27 February 1986, he was appointed a captain in the Army National Guard.  

3.  On 25 December 1989, the applicant was honorably discharged in the rank of captain from the Army National Guard and transferred to the USAR Control Group (Reinforcement).  On 3 September 1993, he was released from the USAR Control Group (Reinforcement) for non-selection for promotion and assigned to the Retired Reserve. 

4.  The applicant’s Army National Guard Retirement Points History Statement, prepared, on 4 February 2009, shows he had 18 years of qualifying service for retirement.

5.  On 22 January 2009, the applicant's application for retired pay was denied because he had not completed 20 qualifying years of Reserve service.

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; has performed at least 20 years of qualifying service; has completed the service requirement during the period beginning on October 1994 and ending on 30 September 1999, and the last 6 years of qualifying service were performed while a member of a Reserve component.

7.  Title 10, U.S. Code, section 12731a was the temporary special retirement qualification authority.  It provided that, during the period 2 October 1992 through 30 December 2001, a member of the Selected Reserve who completed at least 15, and less than 20, years of qualifying service as of 1 October 1991 could, upon the request of the member, be transferred to the Retired Reserve.  

DISCUSSION AND CONCLUSIONS:

The applicant was separated from the Selected Reserve (i.e. the Army National Guard) prior to the enactment of the law authorizing early retirement.  Regrettably, there is no basis for granting the applicant’s request.

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.




      _______ _   _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)                                         AR20090006010



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090006010



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2011 | 20110004672

    Original file (20110004672.txt) Auto-classification: Denied

    IN THE CASE OF: BOARD DATE: 1 September 2011 DOCKET NUMBER: AR20110004672 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090016290, dated 25 March 2010. The Progress Notes are new evidence that will be considered by the Board.

  • ARMY | BCMR | CY2009 | 20090016290

    Original file (20090016290.txt) Auto-classification: Denied

    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. He then served in the US Army Reserve (USAR) or Army National Guard (ARNG) between 11 July 1970 and 22 April 1998. It states in the case of a member of the Selected Reserve who no longer meets the qualifications for membership because the member is unfit because of physical disability, the Secretary may, for the...

  • ARMY | BCMR | CY2010 | 20100013163

    Original file (20100013163.txt) Auto-classification: Approved

    It provides, in pertinent part, that assignment to the Retired Reserve is authorized, provided that eligible Soldiers request transfer and have reached the age of 37 and have completed a minimum of 8 years of qualifying Federal service or have reached the age of 37, completed a minimum of 8 years of qualifying Federal service, and served at least 6 months of active duty in time of war or national emergency. Title 10, U.S. Code, section 12731a (Temporary Special Retirement Qualification...

  • ARMY | BCMR | CY2008 | 20080011795

    Original file (20080011795.txt) Auto-classification: Approved

    In a continuation of her DD Form 149, the applicant stated the FSM had made application for retired pay based on his service in the Army National Guard and Army Reserve. In her continuation of her DD Form 149, the applicant stated the FSM had made application for retired pay based on his service in the Army National Guard and Army Reserve. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing that he timely applied...

  • ARMY | BCMR | CY2010 | 20100015959

    Original file (20100015959.txt) Auto-classification: Denied

    The applicant states, in effect, that he: * was reassigned from the U.S. Army Reserve (USAR) Control Group (Reinforcement) to the Retired Reserve * He has not been discharged or provided notice of eligibility for retired pay * He realizes he is not qualified for a 20-year retirement from the Army Reserve * He contacted the Army Human Resources Command (HRC) and it was suggested that he continue to remain in the Retired Reserve past age 60 * On 10 May 2010, he received an undated, unsigned...

  • ARMY | BCMR | CY2009 | 20090002438

    Original file (20090002438.txt) Auto-classification: Denied

    Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further...

  • ARMY | BCMR | CY2013 | 20130008198

    Original file (20130008198.txt) Auto-classification: Denied

    The applicant states: * he was released from service in 1991 and early retirement was not offered; he was ultimately discharged in 2005 but he was not aware of the 15-year letter * he did not request to be removed from the Active Guard Reserve (AGR) and he has several letters from commanding officers not to remove him from the AGR * he was released from active duty in 1993 due to downsizing and he was placed in the U.S. Army Reserve (USAR) Control Group (Reinforcement) with 18 years of...

  • ARMY | BCMR | CY2009 | 20090018509

    Original file (20090018509.txt) Auto-classification: Denied

    Military Department of Indiana, Indianapolis, Orders 047-022, dated 9 March 1994, honorably separated him from the INARNG effective 28 March 1994 and transferred him to the USAR Control Group (Reinforcement). There is no evidence he requested to be transferred to the Retired Reserve prior to 28 March 1994. There is no evidence he requested to be transferred to the Retired Reserve at that time.

  • ARMY | BCMR | CY2010 | 20100015630

    Original file (20100015630.txt) Auto-classification: Denied

    The applicant, the widow of a deceased former service member (FSM), requests, in effect, a 15-year or 20-year Reserve retirement for the FSM. The applicant provides: * FSM's death certificate * Marriage certificate * DD Forms 214 (Report of Separation from the Armed Forces of the United States) for the periods ending 2 June 1952 and 16 December 1953 * Discharge orders, dated 16 June 1966, from the U.S. Army Reserve (USAR) * Active duty training certificate * DA Form 2139 (Military Pay...

  • ARMY | BCMR | CY2009 | 20090009301

    Original file (20090009301.txt) Auto-classification: Denied

    The applicant requests, in effect, correction of his military records to show that his request for a medical waiver was disapproved and that he had remained in the Retired Reserve, thereby being eligible for retirement benefits. The applicant requested a waiver of his medical disqualification so that he could complete 20 years of qualifying service for a non-regular retirement. The law granting an early retirement based on completion of 15 but less than 20 years of qualifying service is...