IN THE CASE OF:	  

		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20100006960 


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 attained sufficient points from his service in the Regular Army (RA), Active Guard Reserve (AGR), and U.S. Army Reserve (USAR) to qualify for nonregular retirement at age 60.

3.  The applicant provides copies of the following documents:

* a letter from the U.S. Army Human Resources Command, St. Louis 
(HRC-STL), MO
* a U.S. Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points)
* a DD Form 2656 (Data for Payment of Retired Personnel)
* a bank direct deposit form
* a DD Form 108 (Application for Retired Pay Benefits)
* a DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 4 May 1949.  He enlisted in the RA on 8 January 1969 and held military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  He was honorably separated on 12 August 1970 and he was transferred to the USAR Control Group (Annual Training) to complete his Reserve obligation.  He completed 1 year, 7 months, and 5 days of creditable active service.

4.  On 8 May 1974, he was transferred to a USAR troop program unit, Company B, 391st Engineer Battalion, Rock Hill, SC, and held MOS 12B (Combat Engineer).

5.  On 10 December 1982, he executed a 6-year reenlistment in the USAR.

6.  On 19 August 1985, he entered active duty in an AGR status.  He served in MOS 76Y (Unit Supply Specialist) and attained the rank/grade of staff sergeant (SSG)/E-6.

7.  On 18 May 1988, he executed another 6-year reenlistment in the USAR.

8.  On 17 May 1991, he was honorably released from active duty and he was transferred to the USAR Control Group (Reinforcement).  His DD Form 214 shows he completed 5 years, 8 months, and 29 days of creditable active service during this period.

9.  On 12 December 1995, he was honorably discharged from the USAR by reason of expiration of his term of service (ETS).  There is no indication he extended or reenlisted in the USAR to complete 20 years of qualifying service.  Accordingly, he was never issued a 20-year letter.

10.  His ARPC Form 249-E shows he completed 19 years, 7 months, and 5 days of qualifying service toward nonregular retirement.  This statement also shows a breakdown of his total career points by retirement year end (RYE) date.  It shows he earned 47 retirement points during RYE 12 August 1974.

11.  On 4 May 2009, he turned age 60.

12.  On 28 October 2009, he submitted a DD Form 108.  With his application, he submitted a direct deposit form as well as a DD Form 2656, wherein he indicated he was single and elected not to participate in the Survivor Benefit Plan.

13.  On 28 October 2009, by letter to his Member of Congress, HRC-STL stated that to be eligible for retired pay at age 60 by law, a Reserve Component (RC) Soldier must have completed a minimum of 20 qualifying years of service and that as of 1 July 1949, the last 8 qualifying years must be in an RC.  The law does not authorize this pay until all requirements are met.  A qualifying year is defined as a year wherein a Reserve Soldier has earned at least 50 retirement points.  The applicant had completed 19 years, 7 months, and 5 days of qualifying service.  Under current law, his service does not fulfill the requirements for entitlement to retirement benefits.

14.  Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) prescribes policies and procedures for the separation of USAR enlisted Soldiers.  Chapter 11 of this regulation specifies that upon expiration of the Soldier's term of enlistment, reenlistment, or period of statutorily obligated service, the Soldier will be discharged by the separation authority.

15.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 relates to the removal of Soldiers from an active status and states that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.

16.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, states 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 an RC Soldier.  During the period October 1991 to December 2001, the requirement to serve the last 8 years in an RC was amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero years.  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.  The applicant contends that he should be transferred to the Retired Reserve and authorized retired pay at age 60.

2.  The evidence of record shows the applicant was discharged on 12 December 1995 by reason of ETS.  At the time of discharge, he had completed 19 years, 7 months, and 5 days of qualifying service for nonregular retirement.  It is unclear why he did not reenlist and/or extend his existing reenlistment to complete 20 years for nonregular retirement.  It appears that if he had been given the opportunity to reenlist and complete the required 20 years of service for nonregular retirement, he would have done so.

3.  It seems unjust to penalize a Soldier who has served his country honorably for over 19 years and 7 months and for whatever reason did not reenlist or was not afforded the opportunity to complete the remaining time, especially since he was just 3 points short in RYE 12 August 1974 of completing a qualifying year.  Therefore, it is appropriate to redistribute a sufficient number of retirement points without changing the final points total.  Three points should be redistributed to RYE 12 August 1974, thereby making this year a qualifying retirement year.  This recommended redistribution of points should show the applicant completed 20 years of qualifying service with the last 6 years served in an RC.

4.  The applicant should be transferred to the Retired Reserve effective 12 December 1995.  He should also be placed on the Retired List in his retired rank/grade of SSG/E-6 effective 4 May 2009, the date he turned 60, and restoration of all back pay and allowances due on this date.

5.  A Survivor Benefit Plan election must be made prior to the effective date of retirement or the Survivor Benefit Plan will, by law, default to automatic Survivor Benefit Plan spouse coverage (if married).  This correction of records may have an effect on the applicant's status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer for information and assistance immediately.  A listing of Retirement Services Officers by country, state, and installation is available on the Internet at website:  http://www.armyg1.army.mil/rso/rso.asp.  The Retirement Services Officer 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 3 points to RYE 12 August 1974, making this RYE a qualifying year for retirement;

	b.  showing the applicant completed 20 years of qualifying service for nonregular retirement with at least the last 6 years served in the USAR;

	c.  transferring him to the Retired Reserve effective 12 December 1995;

	d.  showing he applied for retirement to be effective on 4 May 2009 (his 60th birthday) and that his application was processed in a timely manner; and

	e.  paying him all back retirement pay and allowances effective on this date.



      _____________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)                                         AR20100006960



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ABCMR Record of Proceedings (cont)                                         AR20100006960



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