IN THE CASE OF:	

		BOARD DATE:	 4 February 2010 

		DOCKET NUMBER:  AR20090013685 


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, correction of his records to make him eligible for a 20-year retirement. 

2.  The applicant states, in effect, that he believes he should be eligible for retirement.  He states that his service was not documented correctly, and he was not paid properly.  He performed extra work to include long weekends and during the summer which was beyond the requirement.  He also states the officials in St. Louis, Missouri, were not able to locate all of his records, they are lost in the filing system.  He further states that the records located at the Madison, Wisconsin, Veterans Affairs Hospital and others located in St. Louis, should be used in support of his application.

3.  The applicant provides no additional documentation 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 complete military records are not available to the Board for review.  However, there were sufficient documents remaining in the available records for the Board to conduct a fair and impartial review of this case.  

3.  The applicant's available military records show he enlisted in the Regular Army (RA) on 2 June 1972.  He was released from active duty on 27 May 1975 and transferred to a Reserve unit.  He was credited with completing 2 years, 11 months, and 26 days of net active service.  His military service obligation was to end on 1 June 1978.

4.  A DA Form 4856 (General Counseling Form), dated 8 November 1987, shows the applicant requested a transfer to the Individual Ready Reserve (IRR) because he was unable to perform many of his tasks at a minimum level of acceptability.  The counselor agreed that it was in the best interest of the unit and the applicant for him to be transferred out of the unit into the IRR.  Counsel believed that rehabilitation would be best accomplished with the applicant serving a period in the IRR.  

5.  The applicant was released from his Reserve unit and transferred to the IRR on 19 February 1988.

6.  The applicant’s available records contain two Chronological Statements of Retirement Points, dated 2 March 2006 and 14 December 2009, that show he was credited with completing 10 years of qualifying service for retirement from  19 May 1979 to 18 May 1996.  The Statements begin with U.S. Army Reserve (USAR) service on 19 May 1979.  His period of active duty from 2 June 1972 to 27 May 1975 and Reserve time from 28 May 1975 on or about 18 May 1979 are not shown.  

7.  The Chronological Statements of Retirement Points also show that he did not earn enough points for qualifying years from 19 May 1987 to 18 May 1988, 19 May 1988 to 18 May 1989, 19 May 1992 to 18 May 1993, 18 May 1994 to 19 May 1995, and from 18 May 1995 to 18 May 1996.  

8.  Title 10, U.S. Code, sections 12731 through 12739, authorizes retired pay for Reserve Components 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.

9.  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 0 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he is eligible for a 20 year retirement.

2.  The available evidence shows the applicant served in the RA from 2 June 1972 to 27 May 1975 and in the Reserve from 28 May 1975 to what appears to be 1996.  It is possible he had a break in service after 1 June 1978 and enlisted in the USAR on 19 May 1979.  While the applicant's Chronological Statements of Retirement Points is only a recapitulation of retirement credits from 19 May 1979 to 18 May 1996, this service to include his RA service is not sufficient to correct his records to show the appropriate number of retirement points required to make him eligible for a 20 year retirement.

3.  The applicant may contact the U. S. Army Human Resources Command – St. Louis directly to correct his Chronological Statement of Retirement Points to include his RA service and any other service for which he can provide evidence proving such service.

4.  In the absence of available evidence, in all cases, the burden of proof rests with an applicant to submit substantiating proof of their entitlement for a correction.  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 has failed to submit evidence that would satisfy this requirement.

5.  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)                                         AR20090013685



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ABCMR Record of Proceedings (cont)                                         AR20090013685



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