IN THE CASE OF:	  
	
		BOARD DATE:	  27 January 2011

		DOCKET NUMBER:  AR20100011821 


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, issuance of a 20-year letter, transfer to the Retired Reserve, and entitlement to retired pay at age 60.

2.  He states, in effect, he served a combined total of 20 years and 3 months of active duty and Reserve Component (RC) duty in the U.S. Army Reserve (USAR), U.S. Naval Reserve (USNR), Army National Guard (ARNG), and Regular Army (RA), to qualify for nonregular retirement at age 60.  He contends that although he never had a break in service or missed any drills while he was in the RC, he is not receiving credit for all those years and afforded an opportunity to retire from the RC.

3.  He provides a copy of his official military personnel file.

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 15 July 1968.

3.  On 1 April 1986, he enlisted in the USAR for a period of 8 years.  He was honorably discharged on 26 January 1993 for the purpose of enlisting in the USNR.  He completed 6 years, 9 months, and 26 days of USAR service.  During this same period of service, his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 10 February 1987, as amended by his DD Form 215 (Correction to DD Form 214), dated 11 March 1996, shows he completed 7 months and 2 days of active duty service.

4.  On 27 January 1993, he enlisted in the USNR for a period of 6 years.  His record is void of any documentation and he did not provide any documentation showing the specific dates of his service in the USNR.

5.  On 13 July 1995, he enlisted in the Puerto Rico ARNG (PRARNG) for a period of 6 years.  He was honorably discharged on 6 January 1997 for the purpose of enlisting in the RA.  His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he completed 1 year, 5 months, and 24 days of PRARNG service during this period.  This form also shows he had 9 years, 3 months, and 12 days of prior RC service and completed no active Federal service during the period covered by the form.

6.  On 7 January 1997, he enlisted in the RA and served through a series of reenlistments until he was honorably discharged on 17 October 2006 due to disability with entitlement to severance pay under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3).  His discharge orders show he was assigned a disability rating of 10 percent and his disability did not result from a combat-related injury.  These orders also show his disability severance pay was based on 10 years, 4 months, and 13 days of active duty service.

7.  His DD Form 214 for the period ending 17 October 2006 shows he completed 9 years, 9 months, and 11 days of RA service.  This form also shows he had 7 months and 2 days of prior active service for a combined total of 10 years, 4 months, and 13 days of active duty service.  He was also credited with completing 10 years, 2 months, and 4 days of prior inactive RC service.  He received disability severance pay in the amount of $50,532.00.

8.  A review of the Total Army Personnel Database maintained by the U.S. Army Human Resources Command shows he provided copies of documentation for all of his periods of service for the purpose of conducting a service computation to determine his total amount of creditable service and retirement points.

9.  His USAR Personnel Command Form 249-E (Chronological Statement of Retirement Points), dated 31 August 2010, shows that during all periods of service in the USAR, USNR, ARNG, and RA, he completed a combined total of 13 years, 6 months, and 18 days of qualifying service creditable toward nonregular retirement.  This statement also shows a breakdown of his total career points creditable toward nonregular retirement.  It shows he was credited with and a total of 4,161 retirement points.  It also shows some years as USNR service when it appears it should be ARNG service.

10.  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 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.

11.  Title 10, U.S. Code, section 1213, provides that unless a person who has received disability severance pay again becomes a member of an armed force, the National Oceanic and Atmospheric Administration, or the Public Health Service, he is not entitled to any payment from the armed force from which he was separated for, or arising out of, his service before separation under any law administered by one of those services or for it by another of those services.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he should be issued a 20-year letter, transferred to the Retired Reserve, and entitled to retired pay at age 60 were carefully considered.

2.  The evidence of record shows the applicant was honorably discharged on 17 October 2006 due to disability with entitlement to severance pay under the provisions of Army Regulation 635-40.  As a result, he received disability severance pay in the amount of $50,532.00.

3.  At the time of his discharge, he completed 13 years, 6 months, and 18 days of qualifying service creditable toward nonregular retirement.

4.  Army Regulation 135-180, paragraph 2-1a, states that to be eligible for retired pay an individual must have completed a minimum of 20 years of qualifying service

5.  Regrettably, the applicant does not qualify for the issuance of a Notification of Eligibility for Nonregular Retirement (20-year letter) and/or transfer to the Retired Reserve and/or entitlement to retired pay at age 60.

6.  The fact that he received disability severance pay precludes him from being able to receive retired pay.  According to Title 10, U.S. Code, section 1213, unless a person who has received disability severance pay again becomes a member of an armed force, the National Oceanic and Atmospheric Administration, or the Public Health Service, he is not entitled to any payment from the armed force from which he was separated for, or arising out of, his service before separation under any law administered by one of those services or for it by another of those services.

7.  However, it is noted that his Chronological Statement of Retirement Points does contain some errors.  If the applicant believes that not all of his retirement points have been credited to him on that form, he should provide evidence of additional points to the U.S. Army Human Resources Command (or to the Navy, if he earned additional points during his USNR service) so his retirement points statement can be updated.  If he had 20 years of qualifying service at the time of his discharge, he would have been given the option of accepting severance pay or electing to receive retired pay at age 60.  If he can show that he had earned 20 years of qualifying service for retired pay, he may apply for reconsideration.

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 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)                                         AR20100011821



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ABCMR Record of Proceedings (cont)                                         AR20100011821



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