IN THE CASE OF:
BOARD DATE: 11 May 2010
DOCKET NUMBER: AR20090018448
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 Congressional representative that his retirement points be "unstacked" for his retirement year ending (RYE) 9 January 1983.
2. The applicant states there was an administrative error in the calculation of his retirement points.
3. The applicant provides copies of his U.S. Army Reserve Personnel Center (DARP) Form 249 (Chronological Statement of Retirement Points), dated 20 December 1993, and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) from the U.S. Air Force (USAF) with an effective date of 3 December 1956.
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 enlisted in the Maryland Army National Guard (ARNG) on 9 January 1982 with prior service in the USAF, the USAF Reserve (AFRES), and the ARNG. He was discharged on 21 May 1982, and on 22 May 1982 he enlisted in the U.S. Army Reserve (USAR) for a period of 3 years. He reenlisted in the USAR on 13 January 1986.
3. The applicant served in the USAF from 4 December 1952 to 3 December 1956.
4. The applicant's DARP Form 249 shows his date of birth as 7 November 1932.
This DARP Form 249 shows his service and retirement points as:
* AFRES - RY's 3 December 1957 thru 29 November 1960 - did not earn minimum of 50 points
* break in service - 30 November 1960 to 2 April 1965
* ARNG - RY's 3 April 1966 to 2 April 1968 attained 50 points or more
* ARNG - RY (partial) 3 April 1968 to 1 March 1969 - did not earn minimum of 50 points
* break in service - 2 March 1969 to 12 January 1970
* AFRES - RY's 13 January 1971 to 12 January 1974 attained 50 points or more
* AFRES - RY's 13 January 1974 to 12 January 1976 - did not earn minimum of 50 points
* break in service - 13 January 1976 to 8 January 1982
* USAR - RYE 8 January 1983 - 135 active duty points with a total of 180 points
* USAR - RY's 9 January 1984 to 8 January 1989 - attained 50 points or more
* USAR - RY's 9 January 1990 to 8 January 1993 - did not earn minimum of 50 points
5. On 1 November 1989, the applicant was voluntarily transferred to the USAR Control Group (Reinforcement) due to his employment conflict. On 30 November 1992, he was assigned to the Retired Reserve by reason of his having attained the maximum allowable age. He had 18 years of qualifying service for non-regular service retirement pay.
6. Title 10, U.S. Code, chapter 1223 (Retired Pay for Non-Regular Service), section 12731 (Age and Service Requirements), provides 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. A qualifying year is determined to be a year in which a minimum of 50 retirement points have been credited for a Reservist.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that if his 135 active duty points were not "stacked" in the RYE 8 January 1983, he would have more than enough qualifying years for retirement pay. He contends there has been an administrative error in the computation of his retirement points.
2. Retirement points are credited for the RYE in which they were earned. The applicant's DARP Form 249 shows 135 active duty points earned during RYE 8 January 1983. In the absence of evidence to the contrary, it is presumed that this entry is correct. These points were earned during RYE 8 January 1983 and are not "stacked." Therefore, there is insufficient evidence to show an administrative error in the assignment of these active duty points.
3. In order for a Soldier to be eligible for non-regular service retirement pay at age 60, he must have 20 years of qualifying service. A Soldier must have a minimum of 50 retirement points for each year in order for that year to be a qualifying year of service. Points are not averaged over a period of years.
4. The applicant's DARP Form 249 shows he had 6 years in a Reserve Component in which he did not earn the required minimum of 50 retirement points. He also had over 11 years of broken service. Therefore, he had sufficient opportunity to earn the required 20 years of qualifying service.
5. The applicant had 18 years of qualifying service when he was transferred to the Retired Reserve by reason of having reached the maximum allowable age. Therefore, he is not eligible for non-regular service retirement pay.
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) AR20090018448
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ABCMR Record of Proceedings (cont) AR20090018448
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