BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090012849 


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 that his records be corrected to show he had over 30 years of creditable service for retirement purposes.

2.  The applicant states, in effect, he left the military with over 30 years of service and he believes he should receive retirement pay based on all of those years.

3.  The applicant provides an extensive volume of documents (273 pages) related to his military service and his efforts to correct his retirement points.  These documents include orders placing him on the Retired List; 
23 Chronological Statements of Retirement Points; 186 Leave and Earnings Statements; 26 enlistment, reenlistment and separation documents; and 
11 documents related to training or advancement.

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, a career Reserve Soldier, was born on 7 September 1935.  He performed active service in the U.S. Navy (USN) and the U.S. Air Force (USAF), and active and inactive Reserve service in the U.S. Naval Reserve (USNR), the U.S. Army Reserve (USAR), and the Army National Guard (ARNG).  

3.  The applicant's most recent Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points) shows he completed the following service:

	a.  active service in the USN from 13 November 1952 through 30 August 1956.  This service equals 3 years, 9 months, and 18 days;

	b.  service in the USNR Individual Ready Reserve (IRR) from 31 August 1956 through 17 September 1959 (not qualifying years for retirement);

	c.  active service in the USAF from 19 September 1956 through 15 February 1963 (3 years, 4 months, and 29 days of active duty);

	d.  a break in service from 16 February 1963 through 15 November 1966.  
(3 years and 9 months);

	e.  ARNG service from 16 November 1966 through 4 August 1967.  
(8 months and 20 days);

	f.  a second break in service from 5 August 1967 through 19 October 1967.
(2 months and 15 days);

	g.  ARNG service from 20 October 1967 through 8 October 1968.  
(11 months and 19 days);

	h.  a third break in service from 9 October 1968 through 13 April 1973.  
(4 years, 5 months, and 5 days);

	i.  USNR service from 14 April 1973 through 1 April 1976 (2 years, 11 months, and 19 days);

	j.  a fourth break in service from 2 April 1976 through 29 September 1976 (5 months and 28 days);

	k.  ARNG service from 30 September 1976 through 29 September 1978 (11 months and 19 days);

	l.  USAR service from 30 September 1978 through 29 September 1984
(6 qualifying years for retirement);

	m.  ARNG service from 30 September 1984 through 2 June 1988
(with only one qualifying year for retirement); 

	n.  inactive ARNG service from 3 June 1988 through 1 May 1991
(no qualifying years for retirement); and

	o.  credited with 20 years, 10 months, and 15 days of qualifying years for retirement and a total of 3,823 total creditable points.

4.  The above periods of service were validated using the documents provided by the applicant.

5.  The available LES's cover the periods from 1 September 1976 through 
30 June 1992.  A review of these documents failed to show any periods of qualifying service not shown on the applicant's most recent ARPC Form 249-E or any additional creditable retirement points.

6.  U. S. Army, Human Resources Command, St. Louis, Orders PO 9-909668, dated 1 September 2009, placed the applicant on the Retired List effective 7 September 1995 in the retired rank of sergeant first class/E-7. 

7.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service), then in effect, set forth the policies implementing retired pay for Soldiers and former Reserve components Soldiers.  In pertinent part it provides the following:

	a.  to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60 and completed a minimum of 20 years of qualifying service; 

	b.  the criteria for establishing or changing the retirement year (RY) dates is that a retirement year once established will not change as long as the Soldier has continuous service in an active status in a Reserve and/or regular component.  It will be changed when there is initial entry or reentry following a break in active status or on the date of transfer to the Reserve Component upon release from active duty in a regular component; 
	c.  retirement points may be earned by USAR Soldiers for active duty (AD), or while in an active Reserve status, for active duty for training (ADT), initial active duty for training (IADT), involuntary active duty for training (involuntary ADT), annual training (AT), inactive duty training (IDT), Reserve membership, and for other activities specified in this regulation.  For purposes of this regulation, AD, ADT, IADT, and AT are treated as separate, mutually exclusive categories; 

	d.  a qualifying year is defined as any year in which a Soldier earns 50 qualifying retirement points;

	e.  qualifying service points are calculated as:

		(1)  one point for each day of active duty;

		(2)  a maximum of fifteen points for each year of membership in an active status in a Reserve Component;

		(3)  one point for each authorized participation in drills or periods of instruction; however, not more than 60 points per year will be credited for inactive duty training, including membership points and extension courses, in any one retirement year; and

	f.  the limitations on the number of points which may be credited to a Soldier during a retirement year are:

		(1)  the maximum number of points creditable in a given year is 365 (366 during leap year); 

		(2)  a maximum of 60 points for inactive duty training (IDT) and membership points, however, the Annual or Terminal Statement of Retirement Points will report all points earned;
	
		(3)  if a Soldier is separated or removed from active status during a retirement year, the Soldier may be credited with a proportionate maximum number of IDT points for that year; and
 
		(4)  a maximum of 15 membership points for each year in an active status. If the Soldier is on active duty for more than 350 days (351) in leap year), membership points will be reduced so the maximum 365 (366) points are not exceeded.



DISCUSSION AND CONCLUSIONS:

1.  The applicant states he left the service with over 30 years of service and he should receive retirement pay based on all of his military service.

2.  The applicant served with multiple branches and components spanning over 36 years; however, not all of this time qualifies for retirement.

3.  The applicant did not perform any inactive service or earn any other retirement points (other than membership points) during his first period of service in the USNR; therefore, these 3 years are not qualifying years and can not be used in his retirement points calculations.  

4.  The applicant had four breaks-in-service which equals a total of over 8 years and 10 months without any military affiliation.  This time does not qualify for inclusion in any retirement calculations.

5.  The applicant did not have any ADT and he did not have sufficient IDT points during his retirement years of 1985 and 1986 to make these years qualifying for retirement.  Therefore, these years do not qualify for inclusion in any retirement calculations.

6.  The applicant clearly completed 16 fully qualifying years for retirement.  He also completed 5 partially qualifying years of service, combining the partially qualifying years gives him an additional 4 years, 10 months and 15 days of qualifying service for retirement.  Combining the two figures gives the applicant the total of 20 years, 10 months and 15 days of qualifying service for retirement as shown on his most current ARPC Form 249-E.

7.  During the period the applicant served, the regulations allowed for no more than a total of 60 points to be credited to a service member for the combination of IDT points, membership points, and extension course points.  There were several years when the applicant earned a greater number of IDT points than the number allowable; therefore, these points are precluded from being used to increase his total number of creditable points.

8.  Only the points earned during qualifying years can be used for retirement calculations.  The applicant has not identified any periods of qualifying service or documented any valid retirement points that have not been used in the calculations for his retirement service and pay.  


9.  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)                                         AR20090012849



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ABCMR Record of Proceedings (cont)                                         AR20090012849



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