IN THE CASE OF:	  

		BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090015893 


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 discharge from the Army National Guard on 4 November 1976 be voided and that he be placed on excess leave from 5 November 1976 through 30 November 1976.  He further requests that he be honorably separated from the Army National Guard on 30 November 1976 and transferred to the U.S. Army Reserve Retired List on 1 December 1976 so as to be eligible for retired pay at age 60.

2.  The applicant states, in effect, that his unit advised him that he would have 20 years of service at the scheduled expiration of his term of service.  Therefore, he did not request medical separation because he felt at that time that he could not reenlist and continue serving due to his physical limitations.  He states that as a Reservist with over 18 years of service, the Army National Guard should not have prematurely discharged him unless approved by appropriate officials.  He states that an injustice occurred because he has been denied retired pay that he was led to believe he justly earned.

3.  The applicant provides the following documents in support of his application:

	a.  a retirement points statement to his Member of Congress from the U.S. Army Human Resources Command (HRC), St. Louis, dated 14 August 2007;

	b.  a letter to his Member of Congress from HRC-St. Louis, dated 22 August 2007; and

	c.  an advisory opinion from the National Guard Bureau (NGB), dated 27 February 2008.

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 was born on 23 July 1939.

3.  The applicant enlisted in the U.S. Navy Reserve on 26 November 1956.  He served continuously in the Navy Reserve until he was called to active duty in the U.S. Navy on 6 July 1960 for a 2-year period of active service.

4.  The applicant was honorably released from active duty on 22 June 1962 and transferred to the U.S. Navy Reserve.  He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows his total active service as 1 year, 11 months, and 17 days and his other service as 3 years, 7 months, and 10 days.  His total service as shown on this DD Form 214 was 5 years, 6 months, and 27 days.

5.  He continued to serve in the U.S. Navy Reserve until his honorable discharge on 4 November 1975.  He immediately enlisted in the Rhode Island Army National Guard on 5 November 1975 for a 1-year period of service.

6.  On 4 November 1976, the applicant was honorably discharged from the Army National Guard and as a Reserve of the Army by Orders 34-1, dated 4 November 1976, issued by 2nd Battalion, 103rd Field Artillery, Rhode Island Army National Guard.  The orders show the reason for discharge was due to the expiration of his term of service.

7.  Upon his separation, an NGB Form 22 (Report of Separation and Record of Service in the Army National Guard of Rhode Island and as a Reserve of the Army - Type of Discharge Honorable) was prepared.  This form shows the highest rank and grade the applicant held was sergeant first class/pay grade E-7.  Item 25 (Prior Service) of this form shows the following service periods:

	a.  U.S. Navy Reserve from 26 November 1956 to 5 July 1960;

	b.  U.S Navy from 6 July 1960 to 22 June 1962; and

	c.  U.S. Navy Reserve from 23 June 1962 to 4 November 1975.

8.  Item 26 (Length This Service) of the applicant's NGB Form 22 shows the entry 1 year, 0 months, and 0 days.  Item 27 (Total Service for Pay Purposes) shows the entry 19 years, 11 months, and 9 days.

9.  On 23 July 1999, the applicant turned 60 years old.

10.  The applicant initially applied to the ABCMR on 15 August 2006.  He received a response to his application from the ABCMR on 25 May 2007 in which he was advised to seek correction to his retirement points records through the HRC-St. Louis Veterans Support Branch.

11.  The Soldier Management System records maintained by HRC-St. Louis show the applicant's Senator wrote to the Department of the Army requesting the applicant be considered for full military retirement benefits on 26 July 2007.  The Senator stated the applicant had 19 years, 11 months, and 9 days of creditable service and was only 21 days short of 20 years of service.

12.  On 22 August 2007, HRC-St. Louis Veterans Support Branch provided the applicant's Senator a copy of the applicant's statement of retirement points.  In a supporting letter to the applicant's Senator, it was concluded the applicant did not have the required years of qualifying service so as to be eligible for retired pay at age 60.  This letter states the applicant "is credited with 19 years, 11 months, and 9 days of qualifying service for retirement."  Further, the U.S. Navy records the applicant submitted to HRC-St. Louis show he entered the U.S. Navy Reserve on 26 November 1956 and was discharged from the Army National Guard on 4 November 1976, which is 21 days before his 20th anniversary as a member of the Armed Forces.

13.  Department of Defense (DOD) Instruction 1215.7 (Service Credit for Reserve Retirement), effective 18 November 2005, states it is DOD policy that uniform procedures be used to manage all Regular and Reserve duty of service members for crediting and accounting for non-regular retirement.

	a.  The retirement year ending date or "anniversary" year is established by the date the member entered into active service or into active status in a Reserve Component.  The start date (month and day) for each successive anniversary year will not be adjusted unless the member has a break in service.  The full-year periods used for the crediting of qualifying years for nonregular retirement shall be based on anniversary years.

	b.  A break in service only occurs when a member transfers to an inactive status list, the Inactive National Guard, the Temporary Disability Retired List, the Retired Reserve, or is discharged to civilian life for a period greater than 24 hours.

	c.  The maximum number of Reserve retirement points excluding active duty points (inactive duty for training points + extension course points + membership points) that can be credited each anniversary year (cap rule) was 60 points per year prior to the date of 23 September 1996.

	d.  Partial years of qualifying service may be combined and credited towards total qualifying years.

	e.  With the publication of this directive, anniversary dates established or revised shall be based on procedures established within this directive.  Previously issued DOD Instructions 1215.07 were cancelled with this publication.

14.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service), in effect at the time, implemented statutory authorities governing the granting of nonregular retired pay to Soldiers and former Reserve Component Soldiers.  Chapter 2 provided eligibility criteria and, in pertinent part, stated that in order to qualify for nonregular retirement a member must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of his or her qualifying service as a Reserve Component Soldier.  Paragraph 2-8 defined qualifying service and stated that a Reserve Component Soldier must earn a minimum of 50 retirement points each retirement year (anniversary year) to have that year credited as qualifying service.

15.  Army Regulation 635-5 (Leave and Passes), in effect at the time, provided for Soldiers on active duty to earn 30 days of leave a year with pay and allowances.  Excess leave is a nonchargeable absence granted to active duty Soldiers for emergencies or unusual circumstances or as otherwise specified by regulation to include Soldiers waiting for punitive discharge, pending administrative discharge, or pending involuntary separation.

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant was a member of the Army National Guard serving as a member of the Reserve Component and not on active duty at the time of his discharge.  Therefore, there is no justification to grant the applicant's request for 21 days of excess leave as he was not on active duty nor was he being separated from active duty on 4 November 1976.

2.  In regard to his contention that his record should be corrected to show he remained a member of the Reserve Component so as to attain 20 years of service, the evidence shows that he enlisted in the Army National Guard on 5 November 1975, the day following his release from the U.S. Navy Reserve.  His enlistment was for 1 year.  Accordingly, on 4 November 1976 he was properly discharged due to the expiration of his term of service.

3.  Had the applicant understood the significance of his decision, presumably he would have extended to ensure that he had 20 years of qualifying service in the Armed Forces and met the criteria for nonregular retirement.  It is obvious that the applicant's chain of command did not have the facts, nor did they appear to understand the precarious situation the applicant faced by not completing a full 20 years of qualifying service.  With 21 days remaining until his or her 20th anniversary of service in the Armed Forces, a prudent person would extend his or her current enlistment.

4.  As a matter of justice, it would be appropriate to correct the applicant's record to show that he extended his Army National Guard enlistment contract for 21 days thereby establishing 25 November 1975 as his new separation date.  Based on this correction, the applicant's record shows he completed 20 years of qualifying service.

5.  With the applicant's record corrected, he meets the eligibility requirements for nonregular retired pay.  Moreover, it would now be equitable to show he made a timely application for retired pay upon reaching age 60.

6.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSO's by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.


BOARD VOTE:

__X__ __  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Departments of the Army records of the individual concerned be corrected by:

	a.  showing the applicant extended his Army National Guard enlistment contract for 21 days by correcting his NGB Form 22 to show he was discharged on 25 November 1976;

	b.  showing the applicant was eligible to apply for nonregular retired pay at age 60, that he so applied upon attaining age 60, and that his application was approved and appropriately processed in a timely manner; and

	c.  paying to the applicant all due retired pay retroactive to the date he turned age 60.



      ___________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)                                         AR20090015893



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090015893



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1