IN THE CASE OF:	

		BOARD DATE:	 3 December 2009 

		DOCKET NUMBER:  AR20090010284 


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 credited with 20 years of qualifying service for retired pay and that he be granted retired pay retroactive to the date he turned age 60.

2.  The applicant states, in effect, that he should be given a qualifying year of service during his second year of enlisted service since he never left active duty when he was commissioned.

3.  The applicant provides his application for retired pay, to include a DD Form 2656 (Data for Payment of Retired Personnel), and his retirement points summary.

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 was born on 12 March 1946.  He was inducted into the Army on 29 September 1967, completed Officer Candidate School, was commissioned as a Reserve officer on 8 August 1969, and remained on active duty in his commissioned status.

3.  The applicant served in Hawaii, Vietnam, and Germany and was promoted to captain.  On 31 December 1976, the applicant was honorably released from active duty and was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

4.  The applicant's Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points) shows that the applicant enlisted in the Regular Army on 29 September 1967 and he was commissioned in the USAR on 8 August 1969.  This form also shows that he earned 74 retirement points during RYE 7 August 1981 and 29 retirement points during RYE 7 August 1988.  His last qualifying year of service was RYE 7 August 1989.

5.  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.

6.  Title 10, U.S. Code, section 12731, authorizes retired pay benefits to members and former members of the Reserve components who have completed a minimum of 20 years of qualifying service and attained the age of 60.  While a qualifying year is determined to be a year in which a minimum of 50 retirement points have been credited for a Reserve member, it is a full year (365 or 366 days, as applicable) for a member of the Regular Army.

7.  The applicant provided a DD Form 2656, signed on 11 June 2009, which shows he declined to participate in the Survivor Benefit Plan.  The form also indicates he was not married and had two dependent children.

DISCUSSION AND CONCLUSIONS:

1.  When the applicant changed components from Regular Army to USAR, his RYE date was established.  Since a qualifying year of service in the Regular Army is a full year, the applicant's 313 days of active duty during that year (prior to his commission) did not constitute a qualifying year of service for nonregular service retirement.

2.  However, it is evident that the applicant believed that all the time he spent on active duty counted as qualifying years of service.  No reasonable individual would stop participating in the USAR when they are only 2 months from achieving retirement eligibility for nonregular service.  The applicant's records do not contain any evidence or indication that the applicant stopped participating in the USAR because of employment conflicts or personal problems.

3.  As such, it would be appropriate to correct the applicant's records to show that he has 20 qualifying years of service, that he was issued a notification of eligibility for retired pay, and that he made an application for retired pay in a timely manner.

4.  The applicant's records should be corrected to show he has 20 qualifying years of service by moving 21 retirement points from RYE 7 August 1981 to RYE 7 August 1988, thereby making RYE 7 August 1988 a qualifying year of service.

5.  An SBP election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage. The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  If he is still unmarried when his retired pay is initiated and if SBP premiums are deducted from his retired pay, he should contact the Defense Finance and Accounting Service to resolve the issue before taking other steps.

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.  moving 21 retirement points from RYE 7 August 1981 to RYE 7 August 1988, thereby making RYE 7 August 1988 a qualifying year of service;

	b.  showing he was issued a notification of eligibility for retired pay and that he made a timely application for nonregular retired pay to be effective at age 60;

	c.  showing he applied for retired pay in a timely manner to be effective the date he turned age 60; and

	d.  paying to him all back retired pay due as a result of the above corrections.



      ___________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)                                         AR20090010284



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ABCMR Record of Proceedings (cont)                                         AR20090010284



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