IN THE CASE OF:	  

		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20090019125 


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 that he be issued a 20-year letter and retired at the time he attained 60 years of age. 

2.  The applicant states that he should have been retired from the Reserve and granted retired pay when he turned 60 years of age.  He goes on to state that he completed 20 years of a combination of active and National Guard time to qualify for retirement and be eligible to receive retired pay at age 60.  He states that he has been trying to correct this error with his units of assignment to no avail and he desires the Board to correct his records to show he served 20 good years of service. 

3.  The applicant provides:

* Two letters explaining his application
* A copy of an electronic mail (email) regarding his points
* Copies of his separation documents
* A copy of a Certificate of Service
* A copy of his Army National Guard Current Annual Statement
* A partial copy of his DD Form 2656 (Application for Retired Pay) and 
* Copies of his Retirement Credits Record





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 are incomplete at best; however, the documents provided by the applicant show that he was born on 14 April 1936 and was inducted in Ashland, Kentucky on 25 March 1954 and served on active duty until he was honorably released from active duty (REFRAD) 8 March 1956 and was transferred to the United States Army Reserve (USAR).

3.  He enlisted in the Florida Army National Guard (FLARNG) on 12 November 1956 and served until he was honorably discharged on 19 February 1957 due to a change of residence (State).

4.  On 25 April 1960, he enlisted in the West Virginia Army National Guard (WVARNG) and served until he was honorably discharged on 18 October 1960 due to incompatible occupation.  

5.  He enlisted in the Regular Army in Beckley, West Virginia on 31 January 1961 and served on active duty until he was honorably discharged on 21 December 1962 due to hardship.

6.  On 19 October 1964 he enlisted in the North Carolina Army National Guard (NCARNG) and served until he was honorably discharged on 25 August 1967 due to a change of residence.

7.  He again enlisted in the WVARNG on 9 September 1967 and served until he was honorably discharged on 23 April 1968 due to change of residence.

8.  On 8 June 1968, he enlisted in the NCARNG and served until he was honorably discharged on 7 June 1969 due to the expiration of his term of service (ETS).  He again enlisted in the NCARNG and served until he was honorably discharged on 10 October 1974 due to a change of residence.
9.  On 2 November 1976, he enlisted in the USAR in Asheville, North Carolina and served until he was honorably discharged on 30 September 1977.  He enlisted in the NCARNG on 1 October 1977 and served until he was honorably discharged on 30 September 1980 due to his ETS.  At that time he was issued a Certificate of Service indicating that he had 22 years of service of which 13 years had been served in the National Guard.

10.  The applicant submitted a DD Form 2656 on 11 April 1996 requesting that he begin receiving retired pay at age 60 effective 14 April 1996.  The record is silent as to what response he received.

11.  A review of the Army National Guard Current Annual Statement shows that as of 21 August 2009, the applicant had only 15 creditable years for retired pay purposes.  There is no evidence in the available records to show that the applicant was ever issued a 20-year letter.

12.  In the processing of this case a staff advisory opinion was obtained from officials at the National Guard Bureau (NGB) which indicates, in effect, that after reviewing all of the applicant’s documents, it was determined that the applicant had only 17 years, 1 month, and 8 days of creditable service for retirement and therefore did not qualify for retirement at age 60.  Officials at NGB indicate that Soldiers must earn a minimum of 50 points in a retirement year to have that year credited towards 20 years of qualifying service for retired pay.  Officials at NGB recommended that his request be disapproved.  The advisory opinion was forwarded to the applicant for comment on 28 April 2010 and to date, no response has been received by the staff of the Board.

13.  Army Regulation 135-180, Qualifying Service for Retired Pay - Nonregular Service, provides, in pertinent part in the regulation in effect at the time, that a Reserve Component Soldier who completes 20 qualifying years of service is eligible to apply for retired pay at age 60, provided that the last 8 years were served in the Reserve Components.  A qualifying year of service is one in which the Soldier earns at least 50 points during the established retirement year.  Any points less than 50 do not qualify as a qualifying year for retirement purposes.  A Soldier must have 20 years of service in which he earned 50 or more points each retirement year in order to be issued a 20-year letter.







DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.
 
2.  The evidence of record clearly shows that the applicant had only 17 years, 1 month, and 8 days of creditable service at the time he was discharged on 
30 September 1980.  Therefore, absent evidence to show that he earned at least 50 points per year for those years or any other years in which he was not credited with the appropriate number of points, there is no basis to grant him points that he did not earn or to issue him a 20-year letter.  

3.  Inasmuch as the applicant has provided no evidence to substantiate his entitlement to such additional retirement point credits, there appears to be no basis to grant him credits to which he is not entitled.  To do so would afford him a benefit not afforded to others in similar circumstances. 

4.  It is a well-known fact among Reserve Component Soldiers that until an individual has received a 20-Year Letter, sufficient service for retirement has not been established.  The fact that the applicant has waited 14 years to ascertain that he did have 20 creditable years of service for retired pay purposes but has not provided the evidence to substantiate his claim is not necessarily indicative of an error on the part of the Department.

5.  Additionally, the applicant has failed to show through the evidence submitted with his application and the evidence of record does not show that he was improperly advised at any point that he had attained 20 or more qualifying years of service for retired pay purposes.  

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)                                         AR20090019125



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ABCMR Record of Proceedings (cont)                                         AR20090019125



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