IN THE CASE OF:	  

		BOARD DATE:	      30 JUNE 2009

		DOCKET NUMBER:  AR20090010067 


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 her father's records be corrected to show that he is eligible for retired pay for nonregular service.

2.  The applicant says she would like to know why her father was denied his retired pay and benefits.  She states that her father honorably served in the U.S. Army Reserve (USAR) and Army National Guard (ARNG) for 38 years, which included numerous periods of active duty.  Now she is told that her father was denied retired pay because he did not have any war time service.  The applicant would like to know what the current Army Regulation or current Title 10, U.S. Code says about this prohibition.

3.  The applicant provides:

   a.  a letter from the Director, Retired Activities dated 21 May 1981 in which her father was informed that Title 10, Chapter 67, stated that a person who was a member of a Reserve Component before August 1945 must have served on extended active duty during some portion of World War I, World War II, or the Korean Conflict.  The Director informed the applicant's father that since he had not served on extended active duty during any of the specified wartime periods, he was not eligible for retired pay.

   b.  a letter certifying the applicant's father's eligibility for retired pay at age 60.  In that letter it was stated that "Your eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of creditable service performed unless it resulted directly from fraud or misrepresentation on your part."

   c.  orders dated 10 February 1981 which reassigned the applicant's father from his USAR troop program unit to the Retired Reserve due to maximum age.

   d.  a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows that the applicant's father served 9 days of active duty due to mobilization.

   e.  a DD Form 108 (Application for Retired Pay Benefits) dated 29 April 2009.

   f.  a durable general power of attorney.

CONSIDERATION OF EVIDENCE:

1.  The applicant's father, hereafter referred to as the Service Member (SM), born on 24 March 1921, enlisted in the ARNG on 2 November 1939 and was discharged on 21 October 1940.

2.  The SM had a break in service until 12 July 1951 at which time he enlisted in the ARNG once again.

3.  The SM served continuously in the ARNG, with every year qualifying for retired pay after his break in service.  The SM was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period 24 March to 1 April 1970.  In Item 30, Remarks, of the DD Form 214, it was stated "This abbreviated form issued USAR unit members mobilized under 10 USC 673a."  His DA Form 20 (Enlisted Qualification Record), item 38 (Record of Assignments), also shows this period of mobilization.

4.  On 31 July 1978, the SM was issued a 20 year letter certifying his eligibility for retired pay at age 60.

5.  The SM was promoted to Sergeant Major (SGM).  On 10 February 1981, orders were issued transferring the SM to the Retired Reserve effective 31 March 1981.

6.  On or about 21 May 1981, the SM's request for retired pay was disapproved.  In that disapproval it was explained that "Records show you completed over 20 years of qualifying service as shown on the inclosed AGUZ Form 249, however, you did not serve on extended active duty during any of the specified wartime periods.  Since you had no war service, you are not eligible for retired pay."
7.  Title 10 U. S. Section 12731, Chapter 1223 - Retired Pay For Non-Regular Service, Age and Service Requirements, states that except as provided in subsection (c), a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person - (1) is at least 60 years of age; (2) has performed at least 20 years of service computed under section 12732 of this title; (3) in the case of a person who completed the service requirements of paragraph (2) before April 25, 2005, performed the last six years of qualifying service while a member of any category named in section 12732(a)(1) of this title, but not while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve, except that in the case of a person who completed the service requirements of paragraph (2) before October 5, 1994, the number of years of such qualifying service under this paragraph shall be eight; and (4) is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.  A person who, before August 16, 1945, was a Reserve of an armed force, or a member of the Army without component or other category covered by section 12732(a)(1) of this title except a regular component, is not eligible for retired pay under this chapter unless - (A) the person performed active duty during World War I or World War II; or (B) the person performed active duty (other than for training) during the Korean conflict, the Berlin crisis, or the Vietnam era.  In this subsection:  (A) The term "World War I" means the period beginning on April 6, 1917, and ending on November 11, 1918.  (B) The term "World War II" means the period beginning on September 9, 1940, and ending on December 31, 1946.  (C) The term "Korean conflict" means the period beginning on June 27, 1950, and ending on July 27, 1953.  (D) The term "Berlin crisis" means the period beginning on August 14, 1961, and ending on May 30, 1963.  (E) The term "Vietnam era" means the period beginning on August 5, 1964, and ending on March 27, 1973.

8.  Title 10, Section 673(a) (since renumbered to Title 10, Section 12302), states that in time of national emergency declared by the President after January 1, 1953, or when otherwise authorized by law, an authority designated by the Secretary concerned may, without the consent of the persons concerned, order any unit, and any member not assigned to a unit organized to serve as a unit, in the Ready Reserve under the jurisdiction of that Secretary to active duty for not more than 24 consecutive months.

9.  In the processing of this case, the Board's staff contacted the Chief, Transition and Separation Branch, Human Resources Command, St. Louis (HRC-STL), 

who stated that there is no requirement for active duty service to be of any particular length to qualify a Reservist for retired pay at age 60 who first became a member prior to August 16, 1945.

DISCUSSION AND CONCLUSIONS:

1.  An obvious error occurred when the SM was denied retired pay in 1981.  He had served 9 days of active duty during a Presidential mobilization.  It was not a period of active duty for training.  However, because the period of active duty was so short, officials who reviewed his records for retired pay eligibility may have believed it was only active duty for training.  

2.  Because the applicant's 9 days of active duty was during a Presidential mobilization, he was fully entitled to retired pay at age 60.

3.  As such, it would be appropriate to correct the SM's records to show that his application for retired pay was approved prior to his reaching age 60 on 24 March 1981, that he was placed on the Retired List effective 24 March 1981, and that he be given the retired pay that this correction will necessitate.

BOARD VOTE:

___X_____  _____X___  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing his application for retired pay was approved prior to his reaching age 60 on 24 March 1981;

   b.  showing that he was placed on the Retired List effective 24 March 1981; and
   
   c.  paying him the retired money that will become due as a result of this correction.



      _______ _   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)                                         AR20090010067





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090010067



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1