IN THE CASE OF:	  

		BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090018942 


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 in four different applications correction of his service so that he may be eligible for non-regular retirement pay at age 60. 

2.  The applicant states, in effect, that his Army National Guard (ARNG) Current Annual Statement does not reflect his actual record of service.  He contends his command told him he had completed enough service to be eligible for non-regular retirement pay at age 60.  However, when he inquired about his eligibility in 2009 he was told he only had 14 years of creditable service.  

3.  The applicant provides the following:

* A copy of an ARNG Current Annual Statement
* A DD Form 214N (Armed Forces of the United States Report of Transfer or Discharge) from the U.S. Navy
* A DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Three Honorable Discharge Certificates
* Two National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service)
* A letter from the Defense Finance and Accounting Service, dated 
16 March 2009
* A letter from the U.S. Army Human Resources Command, St. Louis, dated 21 October 2009



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 records show he was born on 12 March 1949 and enlisted in the U.S. Navy on 21 May 1968.  On 22 January 1970, he was honorably released from active duty (REFRAD), due to reduction in strength, and transferred to the Naval Reserve Manpower Center, Bainbridge, MD.  He was honorably discharged on 24 May 1974.  

3.  The applicant's 4 October 1994 ARNG Current Annual Statement shows      he enlisted in the ARNG on 3 June 1976, transferred to the United States      Army Reserve (USAR) on 1 March 1982, was discharged from the USAR          on 28 February 1985, and again enlisted in the ARNG on 5 November 1985.

4.  On 31 August 1994, he was discharged due to being "medically unfit for retention standards."  His NGB Form 22 shows he was transferred to the USAR Control Group (Retired Reserve).  

5.  The applicant’s ARNG Annual Statement, dated 4 October 1994, shows he has a total of 14 years, 8 months, and 2 days of creditable service for non-regular retirement.  The following table shows the last 8 years of this statement and shows he was credited with 35 retirement points (23 inactive duty training (IDT) points and 12 membership points) in retirement year beginning on 5 November 1993 and ending on 31 August 1994 (299 days). 


From
To
Status
Qualifying For Retirement
Total points
19851105
19861104
ARNG
01  00  00
85
19861105
19871104
ARNG
01  00  00
83
19871105
19881104
ARNG
01  00  00
61
19881105
19891104
ARNG
01  00  00
61
19891105
19901104
ARNG
01  00  00
59
19901105
19901120


-
19901121
19910905


-
19910906
19911104
ARNG
01  00  00
325
19911105
19911128


-
19911129
19921104
ARNG
01  00  00
142
19921105
19931104
ARNG
01  00  00
103
19931105
19940831
ARNG
00  00  00
35
?
?
?
?
?
6.  The applicant turned age 60 on 12 March 2009.

7.  Army Regulation 140-185 (Training and Retirement Points Credits and Unit Level Strength Accounting Records) states that if a Soldier is separated or removed from an active status during a retirement year, the Soldier may be credited with a proportionate maximum number of IDT points for that year as shown in Appendix A.  Appendix B shows the minimum number of points required for a partial year for qualifying service.

8.  Appendix A, Army Regulation 140-185 shows that 50 is the maximum allowable IDT points when a Soldier is separated with between 299 and 304 days during the retirement year.  Appendix B shows that 41 is the minimum points required to credit a portion of a year (of between 293 and 299 days) for qualifying service for retirement.  

9.  Title 10, U.S. Code, section 12731, provides the legal age and service requirements for Reserve non-regular retirement.  It states that a person is entitled upon application to retired pay if the person has attained the applicable eligibility age has performed at least 20 years of service computed under section 12732 of this title; is not entitled under any other provision of law to retired pay from an Armed Force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.  In the case of a person who completed the service requirements before 5 October 1994, the number of years of such qualifying service under this paragraph shall be 8.

10.  Title 10. U.S. Code, section 12731a was the temporary special retirement qualification authority.  A revision dated 5 October 1994 provided that, during the period 1 October 1991 through 30 September 1999, a member of the Selected Reserve who has completed at least 15, and less than 20, years of qualifying service and who no longer met the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, and upon the request of the member, could be transferred to the Retired Reserve and treated as having met the service requirements and be provided with the notification required if he had completed at least 15 and less than 20 years of service.   

11.  Title 10, U.S. Code, section 12731b, currently provides a special rule for members with physical disabilities not incurred in the line of duty.  It states, in pertinent part, that in the case of a member of the Selected Reserve of a Reserve Component (RC) who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years, of qualifying service for retirement purposes.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record does not accurately reflect his service for non-regular retirement at age 60. 

2.  By law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement.  However, a member of the Selected Reserve who is medically disqualified for continued service in an RC may be considered as having met the service requirement and may be issued a notification if the member completed at least 15 years, but less than 20 years, of qualifying service for non-regular retirement purposes.

3. The evidence of record shows the applicant was discharged on 31 August 1994 as a result of being “medically unfit for retention standards.”  At the time of discharge, he had completed 14 years, 8 months, and 2 days of service for non-regular retirement.  Had the applicant earned just 6 more retirement points during his last retirement year, he would have been credited with a partial qualifying year for retirement, thus making him eligible for retirement at age 60 with 15-year retirement.

4.  The applicant earned well over 50 points for retirement during a number of his retirement years.  Therefore, it would be appropriate to redistribute a sufficient number of retirement points to RYE 31 August 1994 thereby making this year a qualifying partial retirement year.  This redistribution of points should show the applicant completed over 15 years of qualifying service with the last 8 years served in an RC. 

5.  The applicant should be placed on the retired list in his retired rank/grade of SGT/E-5, effective 12 March 2009, the date he turned 60, and paid all retired pay due as of this date.

6.  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 all Department of the Army records of the individual concerned be corrected by:

		a.  redistributing sufficient retirement points to RYE 31 August 1994 to make that RYE a qualifying partial retirement year;  

		b.  showing the applicant completed over 15 years of qualifying service for non-regular retirement with at least the last 8 years served in an RC; 

        c.  showing the applicant is eligible to receive Reserve Retired pay in the grade of E-5, that he applied for retired pay in a timely manner to be effective     12 March 2009 and that his application for retired pay was processed in a timely manner; and
   
        d.  that the applicant be paid all back 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)                                         AR20090018942



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ABCMR Record of Proceedings (cont)                                         AR20090018942



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