BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090010698 


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 his 28 October 1985 discharge from the United States Army Reserve (USAR) be voided and that he be transferred to the Retired Reserve on that same date in lieu of being discharged.   He further requests that his retired pay start on his 60th birth date and that he not lose one day's retired pay for each day his application was delayed.  

2.  The applicant states, in effect, that since his date of discharge from the USAR he has been requesting documentation to certify his retirement points.  He states that U.S. Army Human Resources Command (HRC)-St. Louis sent him a letter stating he only had six years of service.  A second letter stated that HRC-St. Louis could not locate his Official Military Personnel File (OMPF) and that he should submit copies of his personal military documents to support a proper accounting of his retirement points.  Recently, he contacted his Member of Congress and within three weeks, he was notified that his OMPF was found and that an accounting of his retirement points was completed.  He received another letter from HRC-St. Louis stating that his application for retired pay was approved, but because he filed after the statute of limitations had expired, he would lose one day's retired pay for each day his retirement application was delayed.  

3.  The applicant provides the following documents in support of his application:  three letters from his Member of Congress, dated 6 March 1986, 13 March 1986, and 6 January 2004; four copies of his AHRC Form 249-2-E (Chronological Statement of Retirement Points), dated 6 November 1981, 6 August 1982, 5 November 1984, and 18 May 2009; and a letter from HRC-St. Louis, dated 9 June 2009.

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 was born on 30 November 1942.  He enlisted in the U.S. Army Reserve (USAR) on 25 August 1960 for assignment to a troop program unit with an eight-year service obligation.  He served three enlistments and had two breaks in service.

3.  After his second break in service, the applicant reenlisted in the USAR for a troop program unit on 24 June 1974.  He served continuously until he was discharged from the USAR on 28 October 1985.  He had attained the rank of sergeant first class/pay grade E-7.

4.  The applicant's turned age 60 on 30 November 2002.

5.  The applicant's available record does not contain a 20-Year Letter that would have been published by U.S. Army Reserve Personnel Center (ARPERCEN) which would certify that the applicant had completed 20 qualifying years of service for nonregular retired pay at age 60. 

6.  The applicant's records do not reveal that he submitted a DA Form 4651-R (Request for Reserve Component Assignment/Attachment) requesting retirement or to be transferred to the Retired Reserve.  

7.  As evidence to support his application, the applicant provided a letter from his Member of Congress, dated 13 March 1986, that had an attached letter from Department of the Army.  This letter stated that the ARPERCEN had done an extensive search and could not locate the applicant's military records.  To assist the applicant in verifying his 20 years of qualifying service, ARPERCEN requested that he provide them personal copies of enlistment documents, discharge orders, pay vouchers, orders assigning him to and relieving him from active duty or active duty for training, annual statements of retirement points, and documents supporting completion of extension courses. 

8.  A second letter, dated 6 January 2004, from HRC-St. Louis (formerly ARPERCEN) informed the applicant's Member of Congress that after a review of available paper and automated personnel records it was determined that he was not eligible for retirement.  His records did not show that he had completed
20 years of qualifying service for nonregular retired pay.  Therefore, his request for retirement was denied.

9.  A third letter, dated 2 June 2009, from HRC-St. Louis informed the applicant that his application for retired pay was approved.  The letter also stated that the statute of limitations governing his entitlement to retroactive pay had passed.  Therefore, effective 11 November 2008, he would lose one day's retired pay for each day's delay.  Attached to this letter was a Retirement Points Accounting System Master Inquiry dated 14 May 2009 that shows the applicant had 20 qualifying years and 21 years, 5 months, and 11 days for longevity purposes.  

10.  In addition, the applicant provided a copy of his ARPC Form 249-E, dated 18 May 2009, that shows he had completed 20 years of qualifying service with 1,637 creditable points for retired pay. 

11.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 7 contains guidance on removal from active status and paragraph 7-1a indicates that Soldiers removed from active status will be discharged or transferred to the Retired Reserve upon their request if they are eligible. 

12.  Army Regulation 135-178 prescribes the policies and procedures for the separation of USAR enlisted Soldiers.  It specifies, in pertinent part, that on expiration of term of enlistment, reenlistment, or period of statutorily obligated service, the Solider will be discharged by the separation authority.  

13.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), indicates, in pertinent part, that each Reserve component Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he completed the service.  

14.  Title 31, U. S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U. S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's first contention is that he should be transferred to the Retired Reserve.  There is no evidence in the available records and the applicant did not provide substantiating evidence that shows he elected to transfer to the Retired Reserve or that he was not counseled properly regarding his options.  The applicant was a senior noncommissioned officer at the time of his discharge.  He knew or should have known that he needed to voluntarily request a transfer to the Retired Reserve.  

2.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant him the requested relief to correct his record to show he was transferred to the Retired Reserve.

3.  In regard to the second contention, the evidence shows the applicant has been trying to correct his records to show he had 20 qualifying years for retired pay at age 60.  His first letter from his Member of Congress was dated 13 March 1986.  In 2004, he was denied retired pay because his retirement points had not yet been fully credited.  In 2009, his application for retired pay was approved based on a complete review of his paper and electronic records that confirmed he had 20 years of qualifying service for retired pay at age 60.  Therefore, there is sufficient evidence to show he had been diligently pursuing a correction to his records well prior to reaching age 60.

4.  As such, it would be appropriate to correct the applicant's record to show that on 30 November 2002, he had been credited with 20 qualifying years for nonregular retirement and that he made application for retired pay on the same day.  Based on this correction, the applicant is entitled to all retired pay due.  



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x_____  ___x____  __x______  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was credited with 20 qualifying years of service on 30 November 2002, that his application for retired pay at age 60 was approved on 30 November 2002, and that he be paid all retired pay due as a result of this correction.  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to transferring the applicant to the Retired Reserve.  



      _______ _   ___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)                                         AR20090010698



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ABCMR Record of Proceedings (cont)                                         AR20090010698



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