BOARD DATE:	  February 23, 2010

		DOCKET NUMBER:  AR20090014017 


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 he be awarded sufficient retirement points to allow him to qualify for retired pay for nonregular service.

2.  The applicant states that he completed a tour in Vietnam when he served on active duty.  Later, he joined the U.S. Army Reserve (USAR) where he served in a battalion for 10 years.  He became exhausted and transferred to the Individual Ready Reserve (IRR).  While in the IRR he attempted to go to annual training (AT) but was consistently told there was no assignment available and no money.  When he reached 20 years of service, he was told he was not eligible to reenlist.

3.  The applicant continues that after he turned age 60 he applied for retired pay only to be told that while he had sufficient years of service, he did not have sufficient qualifying years of service for retired pay for nonregular service.  He contends that he was never told that he needed to earn 50 retirement points a year to earn retired pay and he was denied annual training.  Therefore, he believes he has been cheated out of his retired pay.

4.  The applicant does not provide any additional documents.






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 that he served on active duty from 25 June 1965 to 24 June 1968.  He served 11 months and 22 days in Vietnam during that period of active duty. 

3.  The applicant enlisted in the USAR for assignment to a troop program unit on 5 March 1976, served continuously through reenlistments, and was promoted to pay grade E-7.

4.  On 15 May 1987, the applicant was voluntarily transferred from his troop program unit to the IRR.  The reason for his transfer was job conflict.  He remained assigned to the IRR until his honorable discharge on 12 December 1995.

5.  A DARP Form 249-E dated 16 December 2009, shows that the applicant did not earn sufficient retirement points after his transfer from his troop program unit to qualify any year for retired pay.  This form shows him as having 9 years of qualifying service, but does not include the applicant's 3 years of active duty.  As such, the applicant has 12 years of qualifying service.

6.  Contained in the applicant's military Personnel Records Jacket (MPRJ) is a DARP Form 249 (Chronological Statement of Retirement Points) dated 3 August 1986 addressed to the applicant which shows the retirement points earned by the applicant.  This form shows the applicant's qualifying (8 years) and total (16 years, 4 months, and 28 days) service.

7.  Also contained in the applicant's MPRJ are two records of Army Correspondence Course Program (ACCP) retirement point credits statements and one certificate of correspondence subcourse(s) completed which show the applicant earned five retirement points in retirement year ending (RYE) 4 March 1978, and he earned nine retirement points in RYE 4 March 1979 for completion of correspondence courses.

8.  The applicant turned age 60 on 3 February 2006.

9.  Title 10, U.S. Code authorizes retired pay benefits to members and former members of the Reserve components who have completed a minimum of 20 years qualifying service and attained the age of 60.  While a qualifying year is determined to be a year in which a minimum of 50 retirement points have been credited for a reservist, it is a full year (365 or 366 days, as applicable) for a member of the Regular Army.

DISCUSSION AND CONCLUSIONS:

1.  There is no record of the applicant earning retirement points for which he was not credited, nor has the applicant claimed that he earned additional retirement points.  As such, he does not have 20 qualifying years of service and is not, as an operation of law, entitled to retired pay for nonregular service.

2.  While the applicant states that nobody told him that he needed to earn 50 retirement points a year, it is inconceivable that a sergeant first class who had been assigned to a troop program unit for 9 years was not aware that he had to earn 50 retirement points a year.  The fact that the applicant was given forms awarding him retirement points and recording retirement points is further evidence that the applicant was aware he needed to earn 50 retirement points a year.

3.  It is noted that the applicant was transferred out of his troop program unit due to job conflict and there is no indication that he ever resolved his job conflict.  It is also noted that the applicant waited over 3 years after he turned age 60 to request a correction of his records because he was not eligible for retired pay.

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)                                         AR20090014017





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ABCMR Record of Proceedings (cont)                                         AR20090014017



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