IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100000130 


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 effect, a transfer to the Retired Reserve and entitlement to retired pay at age 60.

2.  The applicant states he did not receive his retirement package and that someone, other than himself, picked up his retirement package from the post office.  He states he separated from the Army National Guard in 1999 while in Arkansas and from the Army Reserve in 2000.  He notes he has not received a retirement package or any pay and doesn’t know if someone else is receiving his benefits.

3.  The applicant provides a copy of a DA Form 200 (Transmittal Record), dated 18 December 2008, that shows a retirement point correction was forwarded to the Human Resources Command in St. Louis and a 22 December 2008 postal return receipt.

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.  Records available to the Board indicate the applicant was born on 19 March 1958.  He entered active duty as a Regular Army enlisted Soldier in September 1978 after 1 month and 4 days in the Delayed Enlistment Program (DEP).  He was honorably discharged on 17 October 1985 with 7 years, 1 month, and 5 days of creditable active Federal service.

3.  Between 18 October 1985 and 17 July 2000 the applicant served in both the United States Army Reserve (USAR) and the Arkansas Army National Guard.  However, according to his Chronological Statement of Retirement Points, issued on 21 May 2010, between 1985 and 2000 he accumulated only 6 additional years of qualifying service for retirement purposes.  During the remaining years while he did accumulate some points he failed to achieve the required 50 points for each retirement year to be considered a qualifying year for retirement purposes.

4.  Based on his approximately 7 years of active Federal service and his 6 qualifying years of Reserve component service, the applicant’s records indicate he had accumulated only 13 years of qualifying service for retirement purposes.

5.  The two documents submitted by the applicant in support of his request appear to be a transmittal record showing a document associated with the correction of his retirement points was forwarded from a USAR unit in Millington, Tennessee to the Human Resources Command in St. Louis.  The transmittal record is dated 16 December 2008.  The second document provided by the applicant is a U.S. Postal Service return receipt reflecting the sender’s name as the USAR unit in Millington and the recipient as the Human Resources Command in St. Louis.  Neither of the documents are addressed to the applicant nor do they indicate he was to acknowledge receipt of the transmitted document.

6.  Army Regulation 135-180 (Army National Guard 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 was later amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero years.  A qualifying year, under this system, is a year in which the servicemember earns at least 50 retirement points during their retirement year. Inactive point credit is earned for inactive duty training, Reserve membership, equivalent instruction, and correspondence courses.  This regulation also specifies, in part, that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant maintains someone else received his “retirement package” the evidence provided by the applicant and in available records does not support this contention.  The transmittal documents provided by the applicant suggest a USAR unit forwarded some sort of file associated with a correction of retirement points to St. Louis but there is no indication the applicant was intended to be the recipient of the transmitted document, nor is there any evidence the applicant was ever sent a “retirement package.”

2.  Although the applicant may have been associated with the military for more than 20 years, in order for him to receive retired pay he must have attained age 60, completed a minimum of 20 years of qualifying service, and at the time he separated served the last 8 years of his qualifying service as an RC Soldier.  Since he only completed a little more than 13 years of qualifying service, he is ineligible for retired pay.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

4.  However, if the applicant believes he has additional retirement points he should contact the Human Resources Command with verification and they can further update his Statement of Retirement Points.

5.  In addition, it appears the applicant will not reach age 60 for another 7 or 8 years.  If he is qualified for enlistment, he can consider rejoining the USAR or Army National Guard to earn the 7 qualifying years he needs to be eligible for a Reserve retirement.

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)                                         AR20100000130



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ABCMR Record of Proceedings (cont)                                         AR20100000130



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