IN THE CASE OF:
BOARD DATE: 29 March 2010
DOCKET NUMBER: AR20090016290
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 issued a Notification for Eligibility for Retired Pay at Age 60 (15-Year Letter).
2. The applicant states, in effect, he has enough retirement points for a 15-Year Letter.
3. The applicant provides:
a. a US Army Human Resources Command (HRC), St. Louis, MO webpage dealing with Notification for Eligibility for Retired Pay at Age 60 (20-Year Letter);
b. a copy of his US Army Reserve Personnel Command ARPC Form 249-E (Chronological Statement of Retirement Points); and
c. an 11 September 2009 letter.
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 was born on 19 October 1946 and turned 60 in 2006. He served in the Regular Army from 12 July 1967 through 10 July 1970. He then served in the US Army Reserve (USAR) or Army National Guard (ARNG) between 11 July 1970 and 22 April 1998.
3. In 1993, the applicant was a member of a troop program unit (TPU). In August 1993, he failed an Army Physical Fitness Test (APFT). On 10 April 1994, a flag was initiated against him for being overweight. On 10 June 1994, he voluntarily transferred from his TPU to the USAR Control Group (Reinforcement).
4. The applicant's ARPC Form 249-E, dated 13 August 2009, shows he earned 15 years, 11 months, and 29 days of qualifying service for retirement purposes. He did not earn a qualifying year after his transfer to the Control Group (Reinforcement).
5. Title 10, U.S. Code, section 12731, provides the legal age and service requirements for Reserve nonregular retirement. It states that a person is entitled upon application to retired pay if the person has attained the applicable eligibility age has performed at least 20 years of service computed under section 12732 of this title; is not entitled under any other provision of law to retired pay from an Armed Force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve; and in the case of a person who completed the service requirements before 25 April 2005, performed the last 6 years of qualifying service while a member of any category named in section 12732(a)(1) of this title, but not while a member of a Regular Component, the Fleet Reserve, or the Fleet Marine Corps Reserve, except that in the case of a person who completed the service requirements of paragraph (2) before 5 October 1994, the number of years of such qualifying service under this paragraph shall be 8.
6. Title 10, U.S. Code, section 12731a was the temporary special retirement qualification authority. It provided a member of the Selected Reserve of a Reserve component who, after 23 October 1992 and before 31 December 2001, completed 15 years, but less than 20 years, of qualifying service for retirement purposes as having met requirements for retired pay, subject to the needs of the Service.
7. Title 10, U.S. Code, section 12731b, provides a special rule for members with physical disabilities not incurred in the line of duty. It states in the case of a member of the Selected Reserve who no longer meets the qualifications for membership because the member is unfit because of physical disability, the Secretary may, for the purpose of section 12731 of this title, determine the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years, of qualifying service for retirement purposes.
DISCUSSION AND CONCLUSIONS:
1. The applicant wishes to be issued a 15-Year Letter so that he may receive nonregular retired pay retroactive to 19 October 2006.
2. The applicant is not entitled to a 15-Year Letter. Title 10 USC §12731a permitted 15-year retirement subject to the needs of the Service. Title 10 USC §12731b provides only Reservists who are unfit for membership in the Selected Reserve because of physical disability may qualify for a 15-Year Letter. The applicant was flagged for being overweight and also failed the AFPT and chose to voluntarily leave the Selected Reserve; he did not request early retirement; nor did he process for a physical disability or a fitness determination.
3. 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 this 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) AR20090016290
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