IN THE CASE OF:	  

		BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100010201 


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 authorized retired pay for nonregular service.

2.  The applicant states after he was released from active duty his civilian jobs kept him traveling so he could not join a Reserve unit.  When he finally obtained a job that did not require travel he tried to join a Reserve unit.  However, he was told at that he had been passed over for promotion twice and he could either remain in the U.S. Army Reserve (USAR) at his current rank or retire with entitlement to retired pay at age 60.  Based on this assurance, he accepted retirement.

3.  But when he applied for retired pay at age 60 he was denied because he did not have 20 qualifying years of service for retired pay.

4.  The applicant provides the orders releasing him from active duty and the 
DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued when he was released from active duty, both effective 29 September 1992.  He also submits the memorandum promoting him to Chief Warrant Officer 3 (CW3) and the memorandum notifying him he was not selected for promotion to CW4.





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 records show he enlisted in the Regular Army on 
1 September 1978, was promoted to pay grade E-5, and was honorably discharged to accept an appointment as a warrant officer on 27 September 1984.

3.  He continued to serve on active duty as a warrant officer and was promoted to CW2.  On 29 September 1992, the applicant was honorably released from active duty with a special separation benefit of $56,004.48 under the Voluntary Separation Incentive program.  The applicant was transferred to the U.S. Army Reserve and was promoted to CW3 effective 30 September 1992.

4.  On 28 February 1995, the applicant was assigned to a troop program unit (TPU).  

5.  On 9 May 1996, the applicant was involuntarily transferred from his TPU to the USAR Control Group due to unsatisfactory participation in unit training.

6.  On 15 September 1997, the applicant was informed he had been passed over for promotion and would be considered for promotion a second time the following year.

7.  On 16 November 1998, the applicant was transferred to the USAR Control Group (Retired Reserve) due to being considered but not selected for promotion twice.

8.  The applicant's ARPC Form 249-E (Chronological Statement of Retirement Points) shows he has earned 14 years and 29 days of service which is qualifying for retired pay at age 60.  This form shows he did not earn any retirement points after his release from active duty; he was only awarded membership points.

9.  Title 10 of the U.S. Code (USC), section 12731 provides the legal authority for age and service requirements for non-regular service retired pay.  It states, in pertinent part, that members are entitled to retired pay when they are at least 60 years of age and have performed at least 20 years of qualifying service.  

10.  Title 10, USC, section 12731a was a temporary special retirement qualification authority.  It provided that, during the period beginning 23 October 1992 through 30 September 1999 (later extended to 31 December 2001), a member of the Selected Reserve who had completed at least 15, and less than 20 years of qualifying service as of 1 October 1991 could, upon the request of the member, be transferred to the Retired Reserve.  It was offered to any Selected Reserve member who lost his or her paid drill position due to inactivation, relocation, or reorganization of his or her unit during the drawdown period.  It did not include members discharged or transferred because they no longer met qualifications for membership.

11.  Army Regulation 135-175, in effect at the time, set forth the basic authority for the separation of Reserve Component officer personnel.  Chapter 4 of that regulation described, in pertinent part, the conditions under which Army Reserve officers may be discharged from their status as Reserves of the Army.  Paragraph 4-4a provided, in pertinent part, that members of the Army Reserve will be removed from an active status and discharged or transferred to the Retired Reserve (if eligible), within 90 days after the board reports its findings, for nonselection for promotion after the second consideration by a Department of the Army Reserve Components selection board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be eligible to receive nonregular service retired pay at age 60.

2.  The applicant had 14 years of qualifying service.

3.  The temporary retirement authority required 15 years of qualifying service.  In addition, it was meant to be a drawdown tool to provide a reduced retirement to Reservists who lost their paid positions due to unit inactivation, relocation, or reorganization and was not meant for members who were already scheduled to leave the Selected Reserve for other reasons.

4.  The applicant was removed from an active status based on having been nonselected for promotion twice.  Therefore, even if he did have 15 years of qualifying service he was not authorized to be issued a 15-year letter for nonregular service retired pay at age 60.
5.  The applicant received over $50,000.00 in separation pay from active duty and he has not submitted anything to corroborate his contention that he was told he could collect retired pay at age 60.

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)                                         AR20100010201



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ABCMR Record of Proceedings (cont)                                         AR20100010201



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