IN THE CASE OF:	  

		BOARD DATE: 19 November 2009

		DOCKET NUMBER:  AR20090008107 


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 years of qualifying service for a non-regular retirement.

2.  The applicant states, in effect, that he was separated from the Army of the United States and he entered the U.S. Army Reserve (USAR) to complete the remainder of his service obligation, but he was told that he did not have to attend unit drills because he had served in the Republic of Vietnam.  He also states, in effect, that if the U.S. Army Human Resources Command (USAHRC), St. Louis, MO, doesn't have all of his available records, then how could they deny that he served for 20 years.  He continues to state that he served his country and participated in the color guard on special occasions, such as funerals.  He states that he was willing at all times, for instance when he attended annual training in Michigan, came home [Kentucky], and attended unit drills at Fort Knox, KY.  He concludes by stating that he is being denied fulfillment of his 20 years of service.

3.  The applicant provides, in support of his application, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 3 August 1967; orders to active duty, dated on various dates; copies of his DA Forms 3686 (Leave and Earnings Statement) and DA Forms 2349 (Military Pay Voucher), dated between 15 July 1973 and 28 February 1987; copies of his DD Forms 1351-2 (Travel Voucher or Subvoucher), dated between
20 April 1985 and 3 May 1987, and copies of his DA Form 1379 (Unit Record of Reserve Training), dated between August 1975 and August 1987, in support of this 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's records show that he was born on 16 April 1944.  He was inducted into the Army of the United States on 4 August 1965.  The DD Form 214 he was issued shows that he was honorably released from active duty on             3 August 1967 and he was transferred to the USAR after completing 2 years of creditable active service.  He served in the Republic of Vietnam from February 1966 to February 1967.  Item 16 (Terminal Date of Reserve Obligation) of his DD Form 214 shows that the terminal date of his Reserve obligation was 2 August 1971.

3.  Letter Orders Number 07-1139560, Office of the Adjutant General, USAR Components and Administration Center, St. Louis, dated 28 July 1971, show that the applicant was relieved from the USAR Control Group (Standby) and honorably discharged by reason of expiration of term of service, effective
3 August 1971.

3.  On 17 March 1973, the applicant enlisted in the USAR for a period of 1 year.  He subsequently extended his enlistment on an unknown date for an unknown period.

5.  On 22 February 1976, the applicant extended his 17 March 1973 enlistment in the USAR for 4 year.

6.  On 16 February 1977, the applicant reenlisted in the USAR for a period of 
6 years.


7.  On 17 March 1978, the applicant reenlisted in the USAR for a period of 
3 years.

8.  On 28 January 1981, the applicant reenlisted in the USAR for a period of 6 years.

9.  On 2 November 1986, the applicant reenlisted in the USAR for a period of 
6 years.

10.  Orders Number D-11-493305, USAR Personnel Command, St. Louis, dated
3 November 1994, show that the applicant was honorably discharged from the USAR on 31 October 1994.

11.  The applicant submitted 11 DA Forms 3686 and DA Forms 2349 dating from 15 July 1973 to 28 February 1987.

12.  The applicant submitted six copies of DD Forms 1351-2 that show that he was on temporary duty during various periods between 20 April 1985 and 3 May 1987. 

13.  The applicant submitted 12 copies of DA Forms 1379 which show that he was present for unit training during various periods between August 1975 and 
4 August 1987.

14.  The applicant submitted nine copies of orders that show that he was ordered to active duty for training during various periods between 27 February 1984 and 4 April 1987.

15.  An ARPC Form 249-E (Chronological Statement of Retirement Points), dated 2 October 2008, shows that the applicant completed 14 years of qualifying service for retirement.  This document also shows:

	a.  the applicant earned a total of 730 points (to include 730 active duty points) creditable towards retirement during the period 4 August 1965 through 
3 August 1967;

	b.  the applicant earned a total of 60 points (to include 0 IDT points, non -qualifying years) creditable towards retirement during the period 4 August 1967 through 3 August 1971;


	c.  the applicant earned a total of 0 points (break in service, a non-qualifying year) creditable towards retirement during the period 4 August 1971 through
16 March 1973; 

	d.  the applicant earned a total of 149 points (to include 97 IDT points and
19 AD points) creditable towards retirement during the period 17 March 1973 through 16 March 1975;

	e.  the applicant earned a total of 27 points (a non-qualifying year) creditable toward retirement during the period 17 March 1975 through 16 March 1976;

	f.  the applicant earned a total of 611 points (to include 371 IDT points and 137 AD points) creditable toward retirement during the period 17 March 1976 through 16 March1984; 

	g.  the applicant earned a total of 48 points (to include 2 AD points, a non-qualifying year) creditable toward retirement during the period 17 March 1984 through 16 March 1985;

	h.  the applicant earned a total of 156 points (to include 95 IDT points and
36 AD points) creditable toward retirement during the period 17 March 1985 through 16 March 1987; and

	i.   the applicant earned a total of 147 points (to include 16 IDT points and
17 AD points, non-qualifying years) creditable toward retirement during the period 17 March 1987 through 1 November 1994.

16.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers.  In pertinent part, it provides that an annual Statement of Retired Points will be prepared for all Soldiers regardless of the number of points awarded.  The purpose of the statement is to give a permanent record of the total retirement points a Soldier earns during a retirement year; to tell the Soldier whether he/she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status; and to give the Soldier an opportunity to request correction of errors in the statement.

17.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) provides, in pertinent part, that after 30 June 1949, a Reservist must 

earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.

18.  Section 12731 of Title 10, U.S. Code, authorizes 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.  The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant served on active duty in the Republic of Vietnam and after his discharge he served in the USAR.  There is no evidence of record that shows the applicant was told not to attend unit drills because of his service in the Republic of Vietnam.  Evidence of record shows that the applicant's history in the Army of the United States and the USAR covered almost a 30-year period, to include periods of AD for training, temporary duty, and unit training.  However, the applicant's ARPC-249-E shows that he only attained 14 years of qualifying service for retirement.  The applicant's ARPC
249-E also shows that during 16 of the years in dispute, he earned less than 50 points per year for creditable service for retirement.  Unfortunately, neither the evidence of record nor the evidence provided by the applicant is sufficient to show that there is an error.

2.  In view of the foregoing, 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)                                         AR20090008107



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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