IN THE CASE OF:	  

		BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090016102 


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 either a 15-year or 20-year retirement at age sixty.

2.  The applicant does not provide a statement or an explanation to justify his request.

3.  The applicant does not provide any supporting 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 records shows he was born on 23 January 1948.  He served on active duty in the Regular Army for 15 years, 4 months, and 15 days.  On
26 September 1983 he was honorably discharged.  On 27 September 1983, the applicant enlisted in the USAR.
3.  Orders 45-22, issued by Headquarters, 122nd U.S. Army Reserve Command, North Little Rock, AR, dated 3 June 1991, reassigned the applicant from his unit of assignment by reason of relocation outside 50 mile - no vacancy, and assigned him to the USAR Control Group (Reinforcement), St. Louis, MO.

4.  Orders D-11-595223, issued by the U.S. Army Reserve Personnel Center, St. Louis, dated 3 November 1995, honorably discharged the applicant from the USAR effective the same date.

5.  The applicant's Human Resources Command (HRC) Integrated Web Services (IWS) record contains an ARPC Form 249-E (Chronological Statement of Retirement Points) that shows he completed 19 years, 1 month, and 20 days of qualifying service for a nonregular retirement as of 22 June 1995.  The statement shows, in pertinent part, the following:

* During retirement year ending (RYE) 22 June 1985 he earned 15 membership points and 53 active duty points for a total of 68 creditable retirement points.  He was credited with one qualifying year for retirement during this RYE
* During RYE 22 June 1987 he earned 19 inactive duty points and 15 member ship points for a total of 34 creditable retirement points.  He was not credited with a qualifying year for retirement during this RYE
* During RYE 22 June 1988 he earned 44 inactive duty points, 15 membership points, and 31 active duty points for a total of 90 creditable retirement points.  He was credited with a qualifying year for retirement during this RYE
* During RYE 22 June 1989 he earned 54 inactive duty points and 15 membership points for a total of 60 creditable retirement points.  He was credited with 1 qualifying year for retirement during this RYE
* During RYE 22 June 1990 he earned 19 inactive duty points, 15 membership points, and 14 active duty points for a total of 48 creditable retirement points.  He was not credited with a qualifying year for retirement during this RYE
* During RYE 22 June 1991 he earned 17 inactive duty points, 15 membership points, and 15 active duty points for a total of 47 creditable retirement points.  He was not credited with a qualifying year for retirement during this RYE

6.  In the processing of this case, on 19 April 2010, an advisory opinion was obtained from the Chief, Transition and Separations, HRC, St. Louis.  The advisory official stated a review of the applicant's file determined that he completed 19 qualifying years of service as of his RYE 1995.  He stated the applicant did not actively participate after that date.  He added that the records show the applicant was transferred to the Individual Ready Reserve (IRR) on 3 June 1991 due to his relocation outside the 50-mile range of his unit.  The advisory official stated that since this was relocation on the part of the applicant and not the unit, a 15-year letter under the authority of Title 10, U.S. Code, section 12731a was not authorized.  He further stated there was no documentation that the applicant was ill or medically unfit for mobilization which would authorize consideration for a 15-year letter under Title 10, U.S. Code, section 12731b.  The advisory official concluded that the applicant was not eligible for favorable consideration for issue of a notice of eligibility for retirement at age 60.

7.  On 19 April 2010, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 5 May 2010, the applicant concurred with the advisory opinion.

8.  Title 10, U.S. Code sections 12731 through 12740 authorize retired pay for Reserve component 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.

9.  Title 10, U.S. Code, Chapter 1223 (Retired Pay for Non-Regular Service), section 12731b (Special rule for members with physical disabilities not incurred in line of duty) provides, in pertinent part, that in the case of a member of the Selected Reserve of a reserve component who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for purposes of entitlement to retirement pay, determine to treat the member as having met the required 20 years of qualifying service.  The Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay if the member has completed at least 15 years, and less than 20 years, of qualifying service.

10.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of retired pay to Soldiers and former Reserve Component Soldiers.  Paragraph 2-1 of that regulation states that 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, completed a minimum of 20 years of qualifying service, and, at the time, served the last 6 years of his qualifying service as a Reserve component Soldier.


11.  Paragraph 2-8 of that same regulation describes qualifying service, as pertains to this case, as service performed in an active status in a Reserve component or in active federal service.  After 30 June 1949, a reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  It is reasonable to assume that a Soldier with over 19 qualifying years toward a 20-year retirement would not knowingly forfeit a qualifying year if he was aware of the situation.  Therefore, it appears that the applicant was not properly advised of the requirements to be eligible for retirement at age 60.

2.  Notwithstanding the recommendation by the advisory official, evidence of record shows that during RYEs 22 June 1987, 22 June 1990, and 22 June 1991, the applicant earned 34, 48, and 47 creditable retirement points, respectively, slightly shy of earning the minimum 50 points necessary to be credited with a qualifying year.  However, during RYEs 22 June 1985, 22 June 1988, and         22 June 1989, the applicant earned 68, 90, and 60 creditable retirement points, respectively, exceeding the minimum 50 points requirement for a qualifying year. Therefore, in the interest of equity and justice, it would be appropriate to redistribute necessary creditable retirement points to RYEs 22 June 1987,        22 June 1990, and 22 June 1991 to make them a qualifying year thereby entitling the applicant to 20-year retirement benefits at age 60.

3.  The evidence of record shows the applicant attained the age of 60 on
23 January 2008.  Thus, as a result of the above records correction, he was entitled to begin receiving retired pay effective on that date.  Therefore, it would be appropriate to correct his records to show that he was officially and timely notified of his eligibility for retired pay at age 60.

4.  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 for information on the SBP and on TRICARE.  A listing of RSOs by country, state, and installation is available on the Internet at: 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 Department of the Army records of the individual concerned be corrected by:

   a.  redistributing creditable retirement points to RYE's 22 June 1987, 22 June 1990, and 22 June 1991, making them a qualifying year for retirement, and showing he completed 20 qualifying years for retirement and was eligible to apply for retired pay at age 60;
   
   b.  showing that he timely applied for retired pay to be effective 23 January 2008 and it was received and processed by the Defense Finance and Accounting Service in a timely manner; and

	c.  paying 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)                                         AR20090016102



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ABCMR Record of Proceedings (cont)                                         AR20090016102



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