IN THE CASE OF:	

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090017556 


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 payment for duty she performed from 1998 through 1999.  

2.  The applicant states the paperwork for the duty she performed was not properly coordinated.  

3.  The applicant provides two DA Forms 1380 (Record of Individual Performance of Reserve Duty Training) in support of her application.  

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.  At the time the applicant submitted her application, she was serving in the Army National Guard (ARNG) in the rank of Chief Warrant Three (CW3).  
3.  The applicant completed prior active and inactive service and accepted an appointment as a Reserve warrant officer on 2 December 1994.  On an unknown date, she was assigned to the 467th Transportation Company.  

4.  Orders published on 23 December 1998 show the applicant was transferred from a Troop Program Unit (TPU) (467th Transportation Company) to the U.S. Army Reserve (USAR) Control Group (Reinforcement) effective 10 December 1998.

5.  The applicant’s 7 March 1999 DA Form 1380, authenticated by Captain B_____, Commander of the 281st Military Intelligence Company, shows the applicant performed duty on the following dates and received 2 retirement points for each date:

* 2 and 3 October 1998 
* 6 and 7 November 1998
* 4 and 5 December 1998
* 9 and 10 January 1999
* 6 and 7 February 1999
* 6 and 7 March 1999

6.  The applicant’s 4 April 1999 DA Form 1380, authenticated by CW3 M_________, Counterintelligence Team Chief, shows the applicant performed duty on the same dates as listed on her 7 March 1999 DA Form 1380.  

7.  Orders published on 9 April 2002 show the applicant was released from the USAR Control Group (Reinforcement) to accept an appointment in the Washington ARNG effective 13 March 1999.  

8.  In a 10 March 2010 email, the Defense Finance and Accounting Service (DFAS) informed a staff member that the applicant was paid for the following dates and received 2 retirement points for each date:

* 3 and 8 October 1998 
* 7 and 8 November 1998
* 13 and 14 March 1999

9.  Section 12732 of Title 10 governs entitlement to retired pay for non-regular service.  Section 12732a (2) states that one point will be credited for each day of active service or full time service under Title 32; one point will be credited for attendance at a drill or period of equivalent instruction; and points at the rate of 15 per year will be credited for membership in a reserve component of an armed force.
10.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers.  Paragraph 2-2 covers criteria for earning retirement points and lists the types of inactive duty training to include training of individual Soldiers in a nonpay status.  

11.  Army Regulation 140-1 (Mission, Organization, and Training), paragraph      3-25, states individual Soldiers will be assigned to annual training and active duty for training to acquire or maintain essential proficiency in their military occupational specialty, subject to availability of funds.  

12.  Army Regulation 140-1, paragraph 3-26, states Soldiers in an active status (Selected/Ready Reserve) may take part in individual inactive duty training in a nonpay training status when authorized by the appropriate official.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that she performed duty between 1998 and 1999, the paperwork was not properly coordinated, and she was not paid is not supported by the available evidence of record.  

2.  The evidence of record shows the applicant was assigned to a TPU until 
10 December 1998.  During this period, her DA Form 1380 shows she performed duties on the following dates:

* 2 and 3 October 1998
* 6 and 7 November 1998
* 4 and 5 December 1998

3.  Orders show the applicant was released from her TPU and transferred to the USAR Control Group (Reinforcement) effective 10 December 1998 and remained until she accepted appointment in the Washington ARNG on 13 March 1999.  While she was assigned to the Individual Ready Reserve (IRR), her DA Form 1380 shows she performed duties only on the following dates:

* 9 and 10 January 1999
* 6 and 7 February 1999
* 6 and 7 March 1999

4.  Data obtained from DFAS confirm the applicant was paid for duty performed on the dates she was assigned to a TPU and for two days after she was appointed in the Army National Guard.  It is noted the dates on the applicant’s DA Forms 1380 differ from the dates DFAS shows she was paid.  

5.  Absent evidence showing the applicant was authorized to train in a pay status for those periods, it appears she was only authorized to train for retirement points.  Therefore, she is not eligible for payment for any additional duty performed during 1998 through 1999.    

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)                                         AR20090017556



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090017556



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1