IN THE CASE OF:	

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090011439 


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 retirement points based on his completion of Phase IV and VI of the officer advanced course (OAC) in 1977.

2.  The applicant states, in effect, that those points would give him a good year and make him eligible to receive retired pay.

3.  In support of his application, the applicant provides copies of eight FS Forms 182-R (U.S. Army Field Artillery School [extension course notices]), dated between 10 July 1972 and 12 June 1973; an undated statement from a former service member, notarized on 10 September 2008; and two letters from the Chief, Transition and Separations Branch, U.S. Army Human Resources Command, St. Louis, MO (USAHRC-STL), dated 9 January 2006 and 1 May 2009, in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statements to the applicant and provides no additional documentation in support of the applicant’s request.

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 he was born on 26 February 1946.  He was appointed in the U.S. Army Reserve (USAR) as a second lieutenant effective 17 January 1967, with prior enlisted service.  He was appointed in the Texas Army National Guard (TXARNG) as a captain effective 12 November 1971.

3.  The applicant submitted a copy of an FS Form 182-R, dated 10 July 1972, showing his enrollment for an extension course.  He also submitted copies of seven FS Forms 182-R that show he completed extension courses on
14 January 1973; 5, 6, and 11 May 1973; and 12 June 1973.  An ARPC Form 245-3 (Chronological Record of Military Service), dated 9 January 2006, shows he was credited with 10 extension course points for this period of time.

4.  The applicant was separated from the TXARNG effective 1 June 1974 and he was transferred to the USAR Control Group (Reinforcement).

5.  AGUZ Forms 115 (Statement of Retirement Points), dated 23 March 1977 and 29 March 1978, show the applicant did not earn extension course points for the periods from 17 January 1976 to 16 January 1977 and 17 January 1977 to 16 January 1978.  He completed the Field Artillery OAC effective 22 March 1979.

6.  The applicant was honorably discharged from the USAR effective 15 February 1995, by reason of age, and he was transferred to the Retired Reserve.

7.  An ARPC Form 245-3, dated 9 January 2006, shows for the retirement year 17 January 1977 to 16 January 1978 the applicant earned zero extension course points and he was not credited with a qualifying year for retirement.  The form also shows that for the year 17 January 1978 to 16 January 1979, he earned
45 extension course points and he was credited with one qualifying year for retirement.  The form further shows he was credited with 19 years, 11 months, and 2 days of qualifying years for retirement.  


8.  On 9 January 2006 and 1 May 2009, the Chief, Transition and Separations, Branch, USAHRC-STL, advised the applicant that an audit of his military records showed he completed 19 years, 11 months, and 2 days of qualifying service for retired pay.  Accordingly, he was ineligible for retired pay as shown on his ARPC Form 249-E.  The letters also advised that he could apply to the ABCMR for a review of his case.

9.  Title 10, U.S. Code, sections 12731 through 12739, 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.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.  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.

10.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), indicates, in pertinent part, that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and, (3) served the last 8-years of his or her qualifying service as a Reserve Component soldier.  The requirement to serve the last 8 years in a Reserve Component has since been amended to the last 6-years and currently there is no minimum requirement.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was separated from the USAR on 15 February 1995 and he was credited with 19 years, 11 months, and 2 days of qualifying service for retired pay.  The applicant was issued a retirement statement that showed he only earned 43 points from 17 January 1977 to
16 January 1978; therefore, he did not earn sufficient points for a qualifying year for retirement.

2.  In view of the fact that there is no evidence that the applicant was properly counseled before he separated concerning eligibility for retired pay at age 60, and as a matter of equity and fairness, it would be appropriate to redistribute
7 creditable points from a qualifying retirement year in excess of 50 points, and 

add it to his retirement year ending (RYE) 16 January 1978 to make it a qualifying year for retirement.  The foregoing action would result in 20 years, 11 months, and 2 days of qualifying service for retirement purposes, thereby, establishing his eligibility to receive retired pay at age 60.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

4.  A Survivor Benefit Plan (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.

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.  redistributing 7 retirement points from a qualifying retirement year that has in excess of 50 points and adding it to RYE 16 January 1978, thereby, giving him the 50 points required for a qualifying year for retirement; and

	b.  showing that he completed 20 years, 11 months, and 2 days of qualifying service, thereby, making him eligible for retired pay at age 60.

     c.  showing he applied for retired pay prior to turning age 60 and that his application was approved and appropriately processed in a timely manner; and


     d.  paying to him all due retired pay retroactive to the date he turned age 60.




      ___________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)                                         AR20090011439



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ABCMR Record of Proceedings (cont)                                         AR20090011439



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