IN THE CASE OF:	  

		BOARD DATE:	    9 March 2010

		DOCKET NUMBER:  AR20090012374 


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, a consolidated DD Form 214 (Certificate of Release or Discharge from Active Duty) for two periods of active service from 15 March 2003 to 14 March 2004 and from 14 March 2004 to 27 October 2004.  She also requests, in effect, that her service be recalculated to show she completed 20 years of total service.

2.  The applicant states, in effect, she was issued two DD Forms 214, covering the periods 15 March 2003 to 14 March 2004 and 14 March 2004 to 27 October 2004.  She also states that her last DD Form 214 should show 20 years of total service.  She believes the recalculation of total service could affect her income.  At the time of separation she was suffering from memory loss. 

3.  In support of her application, the applicant provides copies of her DD Forms 214 ending 14 March 2004 and 27 October 2004. 

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 she entered the Delayed Entry Program (DEP) on 30 September 1980 and she was separated from the DEP and enlisted in the Regular Army on 30 December 1980.  She was separated from active duty (AD) on 28 August 1992 and transferred to the Individual Ready Reserve (United States Army Reserve (USAR)).  She was issued a DD Form 214 showing she completed a total of 11 years, 7 months, and 29 days net active service and she had 3 months total prior inactive service which was DEP service.

3.  The applicant enlisted in USAR on 29 August 1992 and reenlisted in the USAR on 28 August 1995.  

4.  On 15 March 2003, the applicant was ordered to AD in support of Operation Enduring Freedom/Operation Iraqi Freedom.  A DD Form 2173 (Statement of Medical Examination and Duty Status), dated 2 March 2004, shows the applicant sustained injuries on 26 August 2003 during her deployment in Iraq and was medically evacuated to Landstuhl Army Medical Center and admitted on 28 August 2003. 

5.  On 10 March 2004, the Army Human Resources Command, St. Louis, Missouri, issued orders ordering the applicant to AD for the purpose of an AD medical extension for 150 days with a reporting date of 15 March 2004.  

6.  On 14 March 2004, the applicant was released from AD at the completion of required active service and transferred to a Reserve unit.  Item 12a (Date Entered AD This Period) of her DD Form 214 shows she entered AD on 15 March 2003.  Item12b (Separation Date This Period) shows she was separated on 14 March 2004.  Item 12c (Net Active Service This Period) shows she was credited with 1 year of net active service this period.  Item 12d (Total Prior Active Service) shows she was credited with 11 years, 7 months, and
29 days of prior active service.  

7.  The applicant again entered AD on 15 March 2004, and on 4 August 2004 the period of AD was extended to 225 days.  On 27 August 2004, a line of duty determination was approved for her 26 August 2003 injuries.  

8.  The applicant was honorably retired from AD on 27 October 2004, under the provisions of Army Regulation 635-40, paragraph 4-24(b)2, for temporary disability and placed on the Temporary Disability Retired List (TDRL). Item 12a of her DD Form 214 shows she entered AD on 14 March 2004.  Item 12b shows she was separated on 27 October 2004.  Item 12c shows she was credited with 7 months and 14 days of net active service.  Item 12d shows she was credited with 12 years, 10 months, and 18 days of total prior active service.  Item 12e (Total Prior Inactive Service) shows she was credited with 10 years, 10 months, and 15 days of prior inactive service.

9.  The orders placing the applicant on the TDRL are not available.

10.  On 8 August 2008, a Physical Evaluation Board convened and found the applicant physically unfit with a combined rating of 50 percent and recommended separation with a permanent disability retirement.  On 4 September 2008, the U.S. Army Physical Disability Agency issued orders removing the applicant from the Temporary Disability Retirement List (TDRL) and retiring her from service effective 4 September 2008, due to a permanent physical disability.

11.  On 10 February 2009, the applicant was issued a DD Form 215 (Correction to DD Form 214) correcting her DD Form 214 for the period ending 27 October 2004 as follows:  Item 12a to show the date 15 March 2004 and Item 12c to show a total of 7 months and 13 days.  

12.  The applicant’s Chronological Statement of Retirement Points, dated 23 December 2009, shows she was credited with 19 years as of retirement year ending (RYE) 29 September 2004 and 19 years and 1 month of qualifying service for retirement as of RYE 5 September 2008.  It also shows she earned  14 membership points during RYE 5 September 2008 (while she was retired).

13.  Army Regulation 635-5 governs the preparation of the DD Form 214.  It states, in pertinent part, that the DD Form 214 will be prepared for all enlisted personnel ordered or called to active duty at the time of their release from active duty or discharge for each period of service.  

14.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), in effect at the time, indicated, 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; and (2) completed a minimum of 20 years of qualifying service.  Service in the inactive Reserve (which includes the Retired Reserve) is not creditable as qualifying service.

15.  Title 10, U.S. Code, section 1405, stated the years of service of the member for the purpose of computing retired pay are computed by adding (1) the member’s years of active service; (2) the years of service, not included in clause (1), with which the member was entitled to be credited on 31 May 1958 (not 

applicable to the applicant); and (3) the years of service, not included in clause (1) or (2), with which the member would be entitled to be credited under section 12733 of this title if the member were entitled to retired pay under action 12731 (non-regular retirement) of this title.

16.  Title 10, U.S. Code, section 12733, states that for the purpose of computing the retired pay of a person for a non-regular retirement, the person’s years of service and any fractions of such a year are computed by dividing 360 into the sum of the person’s (1) days of active service; (2) full-time service under specified sections of Title 32, U.S. code; and (3) one day of each retirement point credited (with specified limitations).  Subsection 12731(3)(A) states that not more than 60 inactive duty points in any one year of service before the year of service that included 23 September 1996 may be credited.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant entered AD on 15 March 2003 in support of Operation Enduring Freedom/Operation Iraqi Freedom.  She was injured on 26 August 2003 while serving in Iraq.  She was released from AD at the completion of her required period of service on 14 March 2004.  She was properly issued a DD Form 214 showing the 15 March 2003 date in Item 12a and 14 March 2004 date in Item 12b.  

2.  The evidence also shows the applicant was again ordered to AD on 15 March 2004 for medical reasons.  She was retired from AD on 27 October 2004 for the purpose of physical disability retirement and placed on the TDRL.  She was properly issued a DD Form 214 for this period of service.  

3.  She was issued a DD Form 215 correcting her 27 October 2004 DD Form 214 as follows:  Item12a to show she entered on AD on 15 March 2004 and Item 12c to show she completed 7 months and 13 days of net service this period.  In 

accordance with regulatory guidance the applicant was properly issued a DD Form 214 for each period of service.  Therefore, she is not entitled to a DD Form 214 to consolidate her service.  

4.  The applicant also contends her service should be recalculated to show she served 20 years of total service.  It cannot be determined exactly where she believes the error is in regard to the computation of her service.

5.  On 27 October 2004, at the time of her separation and placement on the TDRL she had not completed 20 years of total active service.  She was removed from the TDRL and permanently retired on 4 September 2008, due to a permanent physical disability, and credited with completion of 19 years and 1 month of qualifying years for retirement as of RYE 5 September 2008.  

6.  There is no evidence to show she completed 20 qualifying years of service.  Based on her permanent retirement in 2008 rated at 50 percent and the statute governing the computation of retired pay, any redistribution of creditable points that might give her an additional qualifying year would not increase her retired pay.  

7.  The applicant’s last DD Form 214 shows she completed over 23 years of total service; however, the orders placing her on the TDRL are not available.  If the years of service information that would have been entered on those orders was incorrect, it is possible her retired pay would then have been incorrectly computed.  However, without knowing exactly where the problem lies, no informed records correction can be made.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090012374



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090012374


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1