IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100011180 


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, revocation of his discharge order and reissuance with a later date making him eligible for nonregular retirement.

2.  The applicant states he did in fact attend drills through 27 May 1991.  He states he was assigned to the Selected Reserve as an Individual Mobilization Augmentee (IMA) Soldier indefinite per Order C-09-905491.  He further states he has no idea why he was discharged and that he was still drilling for retirement points through May of 1991.

3.  The applicant provides a copy of a DA Form 1380 (Record of Individual Performance of Reserve Duty Training) and an ARPC Form 249-E (Chronological Statement of Retirement Points).

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 was born on16 March 1950.  He enlisted in the U.S. Army Reserve (USAR) on 21 February 1971 for a period of    6 years.  He completed initial entry training and was awarded the military occupational specialty of engineer equipment repairman.  The highest rank/pay grade he held was sergeant first class/E-7.

3.  He served continuously through reenlistments.  A DD Form 4 (Enlistment or Reenlistment Agreement) contained in his records shows on 19 January 1985 he reenlisted for 6 years in the USAR.  This reenlistment gave him a new expiration term of service (ETS) date of 18 January 1991.

4.  USAR Personnel Center Order D-01-001794, dated 17 January 1991, shows he was discharged from the Ready Reserve effective 18 January 1991, his ETS date.

5.  A DA Form 1380 from the Habersham Emergency Management Agency, dated 24 June 1991, shows he performed equivalent duties, training, or instruction during the period 9 February through 27 May 1991.

6.  His records contain a completed DA Form 2166-7 (Noncommissioned Officer [NCO] Evaluation Report) for the period October 1990 to May 1991.  Part I (Administrative Data), item g (Reason for Submission) contains the entry "Retirement."  The form further shows he met height and weight standards and that he was over 40 years of age and had not yet been screened for the Annual Physical Fitness Test (APFT).

7.  In his statement to the Board he indicates he was in an indefinite status per Order C-09-905491, but that order is not available.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was in an indefinite status per an order which is unavailable to the Board.  As a senior NCO, he should have known he had to reenlist or extend his enlistment to remain in an active status for sufficient time to complete a minimum of 20 qualifying years of service for retirement purposes and receive a Notification of Eligibility for Retired Pay at Age 60 (commonly known as a 20-year letter).

2.  There is no available evidence that he was not eligible for reenlistment or extension of his reenlistment at the time of his discharge.  Since the DA Form 1380 shows he earned retirement points and since he was given an NCO Evaluation Report through May 1991, he obviously thought he was still in an active status in the USAR, it would be appropriate to:

   a.  revoke the order discharging him from the Ready Reserve effective 18 January 1991;
   
   b.  show he executed an extension of enlistment for the period 18 January to 28 May 1991, if the records do not already show this; 
   
   c.  reissue an order to discharge him from the Ready Reserve effective 29 May 1991;
   
   d.  show he was eligible for retired pay at age 60 and that he applied for retired pay in a timely manner to be effective 16 March 2010.

3.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

4.  In view of the foregoing, it would be appropriate to correct his records as shown below.

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.  revoking USAR Personnel Center Order D-01-001794, dated 17 January 1991, discharging him from the Ready Reserve;

   b.  showing he executed an extension of enlistment for the period 18 January to 28 May 1991, if the records do not already show this; 

   c.  reissuing his discharge from the Ready Reserve with an effective date of 29 May 1991; and

   d.  showing he was eligible for retired pay at age 60 and that he applied for retired pay in a timely manner to be effective 16 March 2010 and by paying him all retired pay due as a result of this correction.




      _______ 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)                                         AR20100011180



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ABCMR Record of Proceedings (cont)                                         AR20100011180



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