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 applicants 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 applicants 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 applicants 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 applicants 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
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ABCMR Record of Proceedings (cont) AR20090006010
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