IN THE CASE OF:	  

		BOARD DATE:	        5 November 2009

		DOCKET NUMBER:  AR20090009218 


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, that he be awarded sufficient retirement points to bring him to 20 qualifying years of service for retired pay at age 60.  As an alternative, he requests that he be allowed to take correspondence courses to complete his 20 years.

2.  The applicant states that when he reenlisted [sic] in the U.S. Army Reserve (USAR) on 22 May 1992, he was erroneously given a retirement year ending (RYE) date of 23 December 1992.  The correct date should have been 21 May 1993.

3.  The applicant provides a letter from the U.S. Army Reserve Personnel Command to his elected representative, dated 25 February 1999, and a number of Department of the Army Reserve Personnel (DARP) Forms 249-2-E.

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 records show that he enlisted in the Regular Army on 23 December 1970.  His date of birth is 23 December 1953.  He was honorably discharged on 26 February 1979. 

3.  He had a break in service until his enlistment in the Army National Guard on 9 August 1980.  His RYE was then established as 8 August.

4.  The applicant had qualifying years of service for RYE 8 August 1981, 1982, 1983, 1984, and 1985.  He then earned no retirement points other than membership points until his discharge on 24 February 1991.

5.  He enlisted in the USAR for 6 years on 22 May 1992.  His RYE was established as 21 May at that time.  He served as a personnel senior sergeant in a troop program unit.

6.  On 18 April 1993, a suspension of favorable personnel actions (flag) was initiated against the applicant because the applicant had been entered in the Army Weight Control Program.

7.  The applicant was given a Noncommissioned Officer Evaluation Report (NCOER) for the period ending September 1993.  His rater stated on that NCOER that the applicant was "not within the standards of [Army Regulation] 600-9 [Army Weight Control]…[Army Physical Fitness Test] not administered during this rating period due to non-performance."  The applicant's senior rater stated that he was "unable to observe Soldier's performance for a 90-day period due to nonperformance of drills because of job conflict."

8.  On 17 March 1998, the applicant extended his enlistment.  On 2 November 1999, he was involuntarily discharged at the expiration of his term of service.

9.  The applicant's DARP Forms 249-E and Army Reserve Personnel Center/
Command (ARPC) Forms 249-2E show that the applicant had qualifying years of service for every year after his break in service except for RYE 21 May 1994.  He had a minimum of 43 extension course points credited to him for every RYE except for that year, wherein he only earned 14 extension course points.

10.  The several copies of the applicant's retirement point summaries provided by him all show his RYE changing to 21 May after his break in service ending on 22 May 1992.  His ARPC Form 249-E, dated 3 April 2009, shows he is credited with 19 years, 7 months, and 16 days of qualifying service for retirement.

11.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) provides guidance for awarding retirement points and establishing RYE dates.  Paragraph 1-4 provides that when a service member initially enters active duty in the Regular Army and is then transferred to a Reserve Component, his or her RYE is established as the date of the transfer.  The retirement year once established will not change as long as the Soldier has continuous service in an active status in a Reserve and/or Regular Component.  It will change when there is a break in active status.

12.  Title 10, U.S. Code, chapter 1223 (Retired Pay for Non-Regular Service), section 12731 (Age and Service Requirements), provides, in pertinent part, that a person is entitled, upon application, to retired pay if the person is age 60 and has performed at least 20 years of qualifying service.  A qualifying year of service is established when a Reservist earns at least 50 retirement points within a year.

13.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), paragraph 7-3 (Maximum Age), states that Soldiers not sooner removed for another reason will be removed when they reach maximum age.  Removal date will be the last day of the month in which they reach age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's summary of retirement points shows that he earned sufficient retirement points to qualify every year after his last break in service (when combined with membership points) except for the year in question.  However, all of the applicant's retirement point summaries show that his RYE changed to 21 May after his break in service.  There is no evidence to support the applicant's contention that his RYE was erroneously reported as 23 December.

2.  In addition, a senior personnel sergeant would be expected to know that a RYE would change after a break in service.  He would have been responsible for ensuring the RYE dates of other Soldiers assigned to his unit were changed after breaks in service.

3.  It appears he was denied reenlistment due to being overweight and therefore involuntarily discharged.  The applicant does not turn age 60 until 23 December 2013.  The applicant had more than enough time to earn 20 years of qualifying service prior to reaching maximum age if he had not been involuntarily discharged due to being overweight.  The applicant has not provided any reason why he would have believed in 1994 that he required a qualifying year of service for RYE 21 May 1994 to be eligible for retired pay at age 60.

4.  The preponderance of evidence fails to support the applicant's contention.  As such, there is no basis for granting his request.

5.  As noted above, the applicant does not reach age 60 until 23 December 2013. 
If currently eligible he can still enlist in the USAR and earn a good retirement year before he is mandatorily removed at age 60.

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)                                         AR20090009218



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ABCMR Record of Proceedings (cont)                                         AR20090009218



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