IN THE CASE OF:
BOARD DATE: 13 May 2010
DOCKET NUMBER: AR20090018480
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 correction of his military records to show that he qualified for a non-regular military retirement from the Army National Guard (ARNG).
2. The applicant states that he cannot receive retired pay because he was sent to prison and he was unable to complete the last 7 months of his ARNG service. He asks for forgiveness.
3. The applicant provides, in support of his application, copies of his NGB Form 22 (Report of Separation and Record of Service), four DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), four Honorable Discharge Certificates, and a Certificate of Appreciation.
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. On 14 October 1958, the applicant enlisted in the Regular Army. He served through a series of enlistments and attained the rank of specialist six/pay grade E-6. On 1 June 1973, he was discharged due to expiration term of service (ETS). His service was characterized as honorable. He had completed a total of 14 years, 7 months and 11 days of active duty service.
3. On 4 February 1975, the applicant enlisted in the Georgia ARNG and as a Reserve of the Army. He was separated from the Georgia ARNG and as Reserve of the Army on 7 July 1981 after completing 6 years, 5 months, and
3 days of non-regular military service. His service was characterized as general. His total service for pay equals 21 years and 14 days.
4. Title 10, United States Code, section 12731, provides that a person is entitled, upon application, to retired pay for non-regular service if:
a. he has attained the eligibility age [60 years of age];
b. he has performed at least 20 years of service; and
c. he has performed the last 8 years of such qualifying service while a member of the Reserve [for service completed prior to 5 October 1994].
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he could not complete his last 7 months of ARNG service, he requests that he be forgiven and considered for retired pay.
2. The evidence of record clearly shows the applicant had completed a total of 21 years and 14 days of service. Unfortunately, he was required to serve his last 8 years of service in the Reserve Component to qualify for retired pay at age 60. He completed only 6 years, 5 months and 3 days of the 8-year requirement. Therefore, he does not qualify for retired pay.
3. In view of the above, the applicant's request should be denied.
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) AR20090018480
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ABCMR Record of Proceedings (cont) AR20090018480
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