IN THE CASE OF:	  

		BOARD DATE:	  9 March 2010 

		DOCKET NUMBER:  AR20090011530 


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 credited with 20 qualifying years of service for nonregular Reserve retirement.   

2.  The applicant states, in effect, after serving as a first sergeant (1SG) at 
Fort Indiantown Gap, Pennsylvania, he returned to the 2122nd Garrison, Baltimore, Maryland and was informed there was no position.  For months he had no assigned position and his commander advised him to go into the Individual Ready Reserve (IRR) or find another unit.  He claims he looked at his leave and earnings statement (LES) at the time and he had 19 years and 
6 months of service.  

3.  The applicant claims, in effect, he contacted the U.S. Army Human Resources Command, St. Louis, Missouri St. in 1996, and at first they could not find his file and when he called back, he found out he only had 7 years of service and after repeated calls, he finally got someone to adjust his record show he had 13 years of service.  He states that when he argued that he had 19 years of service, no one ever called him back.  He claims that finally, a friend at Indian Town Gap told him to call Indianapolis to get his pay record; however, his pay records were not complete.  He notified St. Louis of the errors, and the door was shut.  He hopes the Board will now see his problem and help him obtain what he is due. 

4.  The applicant provides a 9 June 2009 letter from the HRC-St. Louis with an ARPC Form 249-E (Chronological Statement of Retirement Points) in support of his application.  

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 record shows that after serving in the U.S. Air Force (USAF) from 10 March 1969 through 19 May 1971, the USAF Reserve (USAFR) from
20 May 1971 through 2 October 1973, and after a break in service from 
3 October 1973 through 23 June 1976, he enlisted in the Air National Guard on 24 June 1976 and transferred to the USAR on 24 June 1977.  

3.  The applicant's record shows he was promoted to master sergeant on 6 April 1984, and that this is the highest rank he attained during his military service.  It further shows his last USAR unit assignment was with the 2122nd U.S. Army Garrison, Baltimore, Maryland, and that he was transferred to the IRR on 8 May 1989.  

4.  On 9 November 1994, the applicant was honorably discharged from the USAR.  A Reserve Personnel Accounting System (RPAS) record of retirement points in his Official Military Personnel File (OMPF) shows he accrued 2,615 retirement points and completed a total of 17 years, 2 months, and 10 days of qualifying service for nonregular Reserve retirement between 10 March 1967 and 9 November 1994.  It also shows he did not accrue the required 50 retirement points for the period between 30 May 1972 and 23 June 1976 and the period between 24 June 1989 and 9 November 1994.

5.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, U.S. Code, Chapter 67, sections 1331 to 1337.  This regulation specifies, in pertinent part, that to be eligible for retired pay an individual must have attained age 60 and completed a minimum of 20 years of qualifying service and that subsequent to 1 July 1949, qualifying service is granted only for each year of service an individual earns 50 or more retirement points.
6.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers.  In pertinent part, it provides that an annual Statement of Retired Points will be prepared for all Soldiers regardless of the number of points awarded.  The purpose of the statement is to give a permanent record of the total retirement points a Soldier earns during a retirement year; to tell the Soldier whether he/she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status; and to give the Soldier an opportunity to request correction of errors in the statement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be granted sufficient service to qualify for nonregular Reserve retirement at age 60 was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  By law and regulation, in order to be eligible for nonregular Reserve retirement and retired pay at age 60, a member must complete a minimum of
20 years of qualifying service and that qualifying service is granted only for each year of service an individual earns 50 or more retirement points.  

3.  The evidence of record contains an RPAS statement of retirement credit that confirms between 10 March 1967 and 9 November 1994, the applicant completed only 17 years, 2 months, and 10 days of qualifying military service for nonregular Reserve retirement.  It further confirms he did not accrue the required 50 retirement points for the period between 30 May 1972 and 23 June 1976, and the period between 24 June 1989 and 9 November 1994.  

4.  The applicant should have been receiving statements of retirement points annually.  He could have raised any questions concerning his points/qualifying years of service at any time.  Absent any evidence confirming additional qualifying service, there is an insufficient evidentiary basis to support granting the requested relief. 

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


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)                                         AR20090011530



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ABCMR Record of Proceedings (cont)                                         AR20090011530



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