BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090018738 


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 Member of Congress (MOC), a 20-year non-regular retirement based on 18 years and 11 months of creditable service.

2.  The applicant states that due to an error in calculating his creditable time, he was erroneously not allowed 18 year sanctuary and was discharged when he should have been permitted to stay to complete 20 qualifying years of service.  

3.  The applicant provides:

* A memorandum from the Maine Retirement Points Accounting Management Noncommissioned Officer (RPAM NCO), Department of Defense, Veterans and Emergency Management, Augusta, ME, dated
29 September 2009,
* A memorandum from the Deputy Chief of Staff, Personnel (DCSPER), Department of Defense, Veterans and Emergency Management, Military Bureau, Joint Force Headquarters, Maine Army National Guard (JFHQs -MEARNG), dated 30 September 2009
* A copy of National Guard Bureau (NGB) Form 22A (Report of Separation and Record of Service) for the period ending 24 February 1987
* A memorandum from the Chief of Staff, MEARNG, to the applicant's MOC, dated 25 February 1987


* A copy of DD Form 214 MC (Armed Forces of the United States Report of Transfer or Discharge) from the U.S. Marine Corps (USMC), for the period ending 7 September 1971
* A copy of NGB Form 23 (ARNG Retirement Points History Statement – Application for Retirement Pay), prepared on 25 September 2009
* A copy of ARNG Form 680-23 (Cumulative Retirement Points Worksheet)
* A copy of section VII (Current and Previous Assignments) of a DA Form
2-1 (Personnel Qualification Record) 
* A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 8 January 1986
* A copy of the disapproval endorsement for waiver of extension from the Director of Personnel, Military Bureau, Headquarters, MEARNG, dated
27 January 1987
* Extracts from National Guard Regulation 600-200 (Enlisted Personnel Management)

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 service records show he enlisted in the USMC on
17 March 1967 under the Delayed Entry Program.  On 10 July 1967, he was discharged from the DEP and he enlisted in the USMC Regular Service on
11 July 1967 for a period of 4 years.  On 9 July 1971 he was honorably released from active duty and he was transferred to USMC Reserve (USMCR) to complete his remaining Reserve obligation.  He was discharged from the USMCR on
24 February 1972.  He subsequently enlisted in the ARNG on 25 February 1972 and was honorably discharged on 24 February 1987.  His highest rank/grade held in the ARNG was Staff Sergeant (SSG)/E-6.  His date of birth is 8 April 1949.


3.  A corrected NGB Form 23C, dated 25 September 2009, shows that he had
18 years, 11 months, and 8 days of creditable service for retired pay at the time of his discharge from the ARNG on 24 February 1987.

4.  The applicant's ARNG Retirement Points History Statement shows he earned 47 points during retirement year ending (RYE) 16 March 1985.  It also shows he had been credited with 75 retirement points during RYE 24 February 1987 (when he was discharged) and a partial qualifying year of 11 months and 8 days.

5.  The memorandum from the Chief of Staff, MEARNG, to the applicant's MOC, dated 25 February 1987, states:

“Unfortunately, we will not be able to extend the enlistment of [applicant’s 
name] as he and his unit commander requested.  He has been granted three one-year waivers because of his overweight status.  His present request constituted a fourth waiver.  By granting anything beyond a one-year waiver, we were violating federal military regulation and have recently been severely criticized by the Army Inspector General for not following proper weight control procedures.  We have separated other individuals from the National Guard, some of them full-time employees who, therefore, lost their primary source of income because of overweight status, and it would be unfair to treat [applicant’s name] differently.”

6.  The memorandum from the DCSPER, MEARNG to the Commanding General, JFHQs – MEARNG, subject: Inquiry Pertaining to Creditable Retirement Status of (applicant's name), dated 30 September 2009, in pertinent part, states:

"MEARNG violated regulation when it granted (applicant's name) his 2nd and 3rd extension waivers.  Specifically, the command exceeded its authority.  Once the Soldier performed creditable time on his 3rd erroneously granted waiver, he had over 18 years (although nobody realized it until this recent inquiry).   Based upon the erroneous computation of creditable time in February 1987, the MEARNG had the authority to deny the 4th enlistment extension waiver.  Had the command had the correct 18 plus creditable years information, they could have asked the Chief, NGB (CNGB) for extension waiver to allow (applicant name) to reach 20 creditable years.

7.  The DCSPER, MEARNG recommended turning his memorandum with the findings and scanned attachments over to the Soldier, so he can submit an application to the ABCMR for consideration.

8.  National Guard Regulation 600-200, paragraph 7-4b, dated 20 March 1987, states that when a unit commander determines it is in the best interest of the ARNG, he or she may authorize extensions.  Table 7-1 lists authorized periods of extensions.  Rule K of this table states that, for Soldiers participating in a weight reduction program, and making satisfactory progress, to meet body fat requirements of Army Regulation 600-9 only one extension is authorized.  The authorized periods of extension are in whole month increments not to exceed   12 months.  

9.  Title 10, U.S. Code, section 1176(b)(2) which was passed in 1992, states that if on the date prescribed for the involuntary separation (other than for physical disability or for cause) or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause) from an active status of a reserve enlisted member or officer, he is entitled to be credited with at least 18, but less than 20, years of service, he may not be discharged, denied reenlistment or transferred from an active status without his consent before the earlier of the date on which he is entitled to be credited with 20 years of qualifying service or the second anniversary of the date on which he would otherwise be discharged or transferred from an active status.

10.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay - Non Regular Service), indicates, in pertinent part, 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 (a) attained age 60; (b) completed a minimum of 20 years of qualifying service; and (c) served the last 8 years of his or her qualifying service as a Reserve Components Soldier.  

11.  Title 10, U.S. Code, sections 12731 through 12739 authorize retired pay for Reserve Component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year ("a good year") is one in which a Reserve Soldier earned 50 retirement points or more.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he would have been extended to meet his requirement of obtaining 20 qualifying years of service had his retirement points been correctly calculated at the time of his separation.  The DCSPER, MEARNG stated, in effect, that the command exceeded its regulatory authority by granting the 2nd and 3rd enlistment extensions and appears to concur with the applicant's contention that he would have been granted an additional extension to allow him to complete 20 qualifying years of service for retirement had his service been calculated correctly at the time.

2.  However, it appears the applicant and the DCSPER, MEARNG may be basing their assertions on the law as it applies today.  "Sanctuary" was not an entitlement when the applicant separated in 1987.

3.  Nevertheless, the applicant’s record shows that he was only 3 retirement points and 22 days short of qualifying for a Reserve retirement.  As a matter of equity, it would only be fair to add 3 points to RYE 16 March 1985 and correcting his records to show he was separated on 16 March 1987 vice 24 February 1987, thereby making him retirement eligible. 

4.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

BOARD VOTE:

___x_____  ___x_____  ___x__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the State Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

	a.  redistributing 3 retirement points to RYE 16 March 1985;

   b.  voiding his 24 February 1987 discharge from the MEARNG and showing he was instead transferred to the Retired Reserve on 16 March 1987; 
   
   c.  showing he was eligible for and applied for retired pay to be effective when he turned age 60 and that his application for retired pay was processed in a timely manner; and

     d.  paying to the applicant all due retired pay retroactive to the date he turned age 60.




      ___________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)                                         AR20090018738



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090018738



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1