IN THE CASE OF:
BOARD DATE: 7 October 2010
DOCKET NUMBER: AR20100010203
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 he be issued a 15-year letter for eligibility to receive retirement pay at age 60.
2. The applicant makes no statement in support of his application.
3. The applicant provides copies of:
* a letter, dated 15 January 2010, from the U.S. Army Human Resources Command (HRC), St. Louis, MO
* his AHRC Form 249-2-E (Chronological Statement of Retirement Points) dated 6 March 2008
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 27 August 1982, the applicant was commissioned a second lieutenant in the Oregon Army National Guard (ORARNG). He had previously served 6 years, 8 months, and 22 days in the U.S. Air Force (USAF) and 4 years, 2 months, and 23 days in the USAF Reserve.
3. The applicant was promoted to first lieutenant on 26 August 1985 and to captain on 12 September 1989.
4. On 18 May 1992, the applicant was separated from the ORARNG and transferred to the U. S. Army Reserve (USAR) Control Group (Reinforcement). On 28 March 1994, he was transferred from the USAR Control Group to a troop program unit.
5. On 6 June 1997, HRC notified the applicant he had not been selected for promotion for a second time and that he must be discharged or transferred to the Retired Reserve.
6. On 1 March 1998, the applicant was transferred to the Retired Reserve. The reason stated on the orders was promotion non-selection. He had completed
16 years, 2 months, and 24 days of qualifying service for retirement pay at
age 60.
7. A letter, dated 15 January 2010, from HRC denied the applicant's application for retired pay. HRC stated he was not issued a 15-year letter notifying him of eligibility for retired pay at age 60.
8. 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.
9. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should have received a 15-letter to receive non-regular service retired pay at age 60.
2. The temporary retirement authority 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.
3. The applicant was required to be removed from the Selected Reserve based on having been non-selected for promotion twice. Therefore, he was not authorized a 15-year letter for non-regular service 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) AR20100010203
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ABCMR Record of Proceedings (cont) AR20100010203
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