IN THE CASE OF:	  

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090017175 


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, through his counsel, 3 years of qualifying service in the U.S. Army Reserve (USAR) in order to become eligible for non-regular service retirement pay.

2.  The applicant deferred any statements to his counsel.

3.  The applicant provides additional evidence through his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's records be corrected to show he has 
20 years of qualifying service toward retirement.

2.  Counsel states the applicant had served 17 years in the National Guard when he was transferred to the USAR.  He states the applicant's records were not properly transferred and on 10 August 2004 he was mobilized and deployed to Iraq in support of Operation Iraqi Freedom (OIF).  He states the Department of Veterans Affairs (VA) has assigned the applicant a combined disability rating of 60 percent.  Counsel states the Army has already admitted committing an error that resulted in the applicant's mobilization to Iraq.  Counsel states the appropriate remedy for this error is to provide the applicant with a retirement so he can receive both retirement pay and disability compensation from the VA.


3.  Counsel provides copies of an undated letter from the U.S. Army Human Resources Command, St. Louis, MO (HRC-STL); the applicant's DD Form 214 (Certificate of Release or Discharge From Active Duty) with a separation date of 6 January 2006; the applicant's orders to active duty; the applicant's VA Rating Decision, dated 3 September 2009; and a Cincinnati VA Medical Clinic Neuropsychological Report.

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 personnel records show he initially enlisted in the Ohio Army National Guard (OHARNG) on 10 April 1979 for a period of 6 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12B (Combat Engineer).

3.  On 12 June 1982, the applicant was discharged from the OHARNG to accept appointment as a commissioned officer in the USAR.

4.  On 13 September 1982, the applicant was commissioned a second lieutenant in the OHARNG.  He was promoted to captain effective 22 September 1988.

5.  On 28 April 1996, the applicant was separated from the OHARNG and from the Reserve of the Army to enlist in the OHARNG.

6.  On 29 April 1996, the applicant enlisted in the OHARNG.  The applicant's enlistment contract is not available for review.

7.  On 30 June 1997, the applicant was released from the OHARNG and transferred to the USAR Control Group (Reinforcement) to complete his 1 year,
9 months, and 29 days of remaining contractual military service obligation.

8.  HRC-STL Orders M-08-403924, dated 10 August 2004, ordered the applicant to active duty effective 13 October 2004 for a period not to exceed 545 days for partial mobilization - OIF.

9.  On 6 January 2006, the applicant was released from active duty not by reason of physical disability and transferred to the USAR Control Group (Reinforcement).  He had completed 1 year, 2 months, and 24 days of active service that was characterized as honorable.

10.  HRC-STL Orders D-05-612233, dated 23 May 2006, honorably discharged the applicant from the USAR.

11.  An undated letter to the applicant's Congressional representative from the Transition and Separations Branch, HRC-STL, with the applicant's ARPC Form 249-E (Chronological Statement of Retirement Points), dated 16 June 2009, stated the Army erred in not discharging the applicant at his expiration of term of service (ETS) on 17 April 1999.  This error prompted his receiving mobilization orders in 2004.

12.  Title 10, U.S. Code, Chapter 1223 (Retired Pay for Non-Regular Service), Section 12731 (Age and Service Requirements) provides, in pertinent part, that 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.  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.  The applicant contends he should be credited with 3 years of qualifying service so he can be eligible for retirement pay.

2.  Counsel contends the appropriate remedy is to provide the applicant with a retirement so he can receive both retirement pay and disability compensation from the VA.  However, there are no provisions for awarding 3 additional qualifying years based on a little over 11 months in Iraq.

3.  Upon the applicant's release from the OHARNG on 30 June 1997 he had earned 15 years of qualifying service for eligibility for non-regular service retirement pay.

4.  The applicant's ARPC Form 249-E shows he did not earn any inactive or active duty points during the period from 1 July 1997 to 12 October 2004.  Only 15 membership points are shown for each retirement year during this period.  Therefore, the applicant did not earn the 50 points required in any retirement year during this period.

5.  The applicant was credited with at least 50 points during his retirement years ending 9 April 2005 and 9 April 2006, giving him 2 additional qualifying years.  Therefore, he has a total of 17 years of qualifying service for eligibility to receive non-regular retirement pay.

6.  Retirement points are not awarded for service not performed.  Therefore, the applicant is not eligible for non-regular service retirement pay at age 60.

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)                                         AR20090017175



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ABCMR Record of Proceedings (cont)                                         AR20090017175



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