BOARD DATE: 18 March 2010
DOCKET NUMBER: AR20090015398
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 special consideration to receive non-regular service retirement pay.
2. The applicant states he received a letter from the U.S. Army Reserve Personnel Center (now known as Human Resources Command), St. Louis, MO, transferring him to the Retired Reserve. He also received a Retired Reserve Certificate. He states he would have tried to serve additional qualifying years for retirement pay if he had been given more information. He states he did not understand the retirement letter did not mean he would receive retirement pay.
3. The applicant provides his DD Form 2656 (Data for Payment of Retired Personnel), Standard Form 1199A (Direct Deposit Sign-Up Form), Certificate of Marriage, DD Form 108 (Application for Retired Pay Benefits), three ARPC Forms 249-2 (Chronological Statement of Retirement Points), and orders transferring him to the Retired Reserve.
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 applicants 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 applicants 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 personnel records show he enlisted in the U.S Army Reserve (USAR) on 26 January 1980 for a period of 3 years in pay grade E-6. He had previously served 10 years and 7 months in the Regular Army (RA) and
2 months and 25 days in the USAR.
3. On 13 July 1986, the applicant was promoted to platoon sergeant/pay grade E-7.
4. On 21 October 1988, the applicant was transferred to the USAR Control Group (Reinforcement).
5. On 11 May 1995, the applicant was transferred to the Retired Reserve.
6. The applicant's ARPC Form 249-E (Chronological Statement of Retirement Points) shows:
a. he earned at least 50 retirement points for each of his retirement years beginning 22 January 1982 and ending 21 January 1988.
b. he failed to earn at least 50 retirement points in each of his retirement years from 1 April 1988 until his transfer to the Retired Reserve on 11 May 1995.
c. his total qualifying years of service for retirement is 16 years, 8 months, and 27 days as of 11 May 1995.
7. Title 10, U.S. Code, chapter 1223 (Retired Pay for Non-Regular Service), section 12731 (Age and Service Requirements) states a person is entitled, upon application, to retired pay if the person is age 60 and has performed at least 20 years of qualifying service for retirement. After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should receive non-regular service retirement pay based on his service.
2. The applicant did not have the required 20 years of qualifying service at the time he was transferred to the Retired Reserve. During the applicant's first
6 years in the USAR he obtained the minimum of 50 retirement points each year. Adding this qualifying service to his previous RA service gave him 16 years,
8 months, and 27 days of qualifying service for retirement. However, for reasons not shown in the record, he failed to earn the minimum 50 points for the next
7 years. Therefore, he is not entitled to receive retirement pay at age 60.
3. He contends he would have tried to serve additional qualifying years for retirement pay if he had been given more information. However, it is reasonable to presume a platoon sergeant/pay grade E-7 with 13 years in the USAR would be aware of the requirement to have 20 qualifying years to be eligible to receive retirement pay at age 60. The fact that he earned the required 50 retirement points during his first 6 years in the USAR supports this presumption. Therefore, the evidence does not support his contention.
4. 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 that 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) AR20090015398
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