BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090018509 


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 transfer to the Retired Reserve.

2.  The applicant states that he would like to be reassigned from the U.S. Army Reserve (USAR) Control Group (Reinforcement) to the Retired Reserve in order to attain a retired identification card for himself and his wife.  He would also like to receive the increase for his retired pay and the benefits of a retiree.

3.  The applicant provides copies of his Army National Guard (ARNG) separation orders and his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).

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 records show he enlisted in the Indiana ARNG (INARNG) on 12 February 1970 and was honorably discharged on 6 May 1977 to accept an appointment as an officer.  On 7 May 1977 he was appointed in the Indiana ARNG (INARNG) as a second lieutenant.  He was subsequently promoted to captain effective 21 December 1984.

3.  He was considered and selected for promotion to major by the 1991 Reserve Components Selection Boards that convened on 5 March and recessed on 29 March 1991.  The board results were released on 16 May 1991.

4.  On 13 June 1991, he was issued a State Of Indiana, Military Department, Office of the Adjutant General, Indianapolis, IN memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60.

5.  On 9 September 1991, he submitted a request for declination of promotion to major for the maximum authorized period of 3 years.  His request was approved on 16 March 1992 with an expiration date of 28 March 1994.

6.  His NGB Form 23B (ARNG Retirement Points History Statement), dated
23 March 1993, shows he was credited with 22 years of creditable service for retired pay as of his retirement year ending 12 February 1993.

7.  By State of Indiana, Military Department, Office of the Adjutant General memorandum, subject:  Selection for Retention Under the Provisions of National Guard Regulation 635-102 (Officers and Warrant Officers Selective Retention), dated 23 August 1993, he was approved for retention in the INARNG for one year by the 1993 Selection Retention Board.

8.  Military Department of Indiana, Indianapolis, Orders 047-022, dated 9 March 1994, honorably separated him from the INARNG effective 28 March 1994 and transferred him to the USAR Control Group (Reinforcement).  There is no evidence he requested to be transferred to the Retired Reserve prior to 28 March 1994.

9.  An NGB Form 22 also shows he was honorably separated from the INARNG, effective 28 March 1994, under the provisions of National Guard Regulation
635-100 (Personnel Separations - Termination of Appointment and Withdrawal of Federal Recognition) by reason of maximum declination period.  He was transferred to the USAR Control Group (Reinforcement).  He was credited with 24 years, 1 month, and 17 days of total service for pay.

10.  The U.S, Army Reserve Personnel Center, St. Louis, MO, issued orders discharging him from USAR effective 11 September 1997.

11.  On 26 October 2009, U.S. Army Human Resources Command, St Louis, Orders P10-011194 announced his placement on the retired list in the grade of major effective 25 November 2009, the date he reached age 60.

12.  Army Regulation 135-180 (ARNG and Army Reserve Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, indicates that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60, (2) completed a minimum of 20 years of qualifying service, and (3) served the last 8 years of his or her qualifying service as a Reserve Component (RC) Soldier.  The requirement to serve the last 8 years in an RC has since been amended to the last 6 years, and on 26 April 2005, this requirement was reduced to zero (0) years.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows he was selected for promotion to major by the 1991 RCSB.  On 13 June 1991, he was notified that he had completed the required years of service for retired pay upon application at age 60.  He elected to decline the promotion and his request was approved with an expiration date of 28 March 1994.  He was separated from the IDARNG effective 28 March 1994 for reaching the maximum declination period and transferred to the USAR Control Group (Reinforcement).

2.  There is no evidence he requested to be transferred to the Retired Reserve at that time.  He provided no evidence to show that an injustice occurred during his INARNG separation processing or that a reversal action should be executed at this time to show he was transferred to the Retired Reserve.

3.  He reached age 60 on 25 November 2009 and was transferred to the Retired List.  In accordance with regulatory guidance, even though he had not been transferred to the Retired Reserve prior to 25 November 2009, the applicant was eligible to apply for retired pay upon reaching age 60, and it appears that he has already done so.

4.  It is noted that identification cards are issued to retirees and eligible family members as a means of identification and as authorization for various benefits and privileges.  Retirees and eligible family member who are enrolled in the Defense Enrollment Eligibility Reporting System (DEERS) may apply to any 

military identification card issuing facility for issuance of the appropriate identification card.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant’s requests.

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)                                         AR20090018509



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ABCMR Record of Proceedings (cont)                                         AR20090018509



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