IN THE CASE OF:	  

		BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100013163 


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 issuance of a Notification of Eligibility for Retired Pay at Age 60 (15-year letter) and granting of full retirement pay and benefits.

2.  He states he obtained 15 qualifying years of service and he was assigned to the Retired Reserve on 14 October 1994.  According to Title 10, U.S. Code, section 12731a, he is qualified for retirement at age 60; however, he was never issued a 15-year letter.

3.  He provided the following documentation:

* A copy of a letter from the Transition and Separations Branch, U.S. Army Human Resources Command, St. Louis, MO, dated 29 March 2010
* An ARPC Form 249-2-E (Chronological Statement of Retirement Points), prepared on 5 February 2010
* A copy of a DA Form 977 (Retired Reserve Certificate), dated 14 October 1994
* A copy of a webpage from Cornell University Law School pertaining to Title 10, U.S. Code, section 12731a

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.  He was born on 21 May 1946 and enlisted in the Regular Army on 30 October 1968.  He was honorably released from active duty (REFRAD) on 4 June 1971 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his Service obligation.

3.  On 5 January 1973, he again enlisted in the Regular Army and he continued to serve on active duty until 16 August 1978, at which time he was honorably discharged.  On 17 August 1978, he was appointed as a USAR warrant officer under Title 10, U.S. Code, Sections 591 and 597, and entered active duty on 
17 August 1978.

4.  A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably REFRAD on 14 September 1985 under the provisions of Army Regulation 635-100 (Officer Personnel), chapter 3 (Failure of Section, Temporary Promotion).  He was transferred to the 223rd Military Intelligence (MI) Company, Washington, D.C., as a non-drilling member.  This form shows he had a total of 15 years, 3 months, and 15 days of total active service.

5.  A copy of Orders 135-5, Headquarters, First United States Army, dated 
29 July 1987 show he was reassigned from the 223rd MI Company to the USAR Control Group (Reinforcement) effective 17 July 1987.

6.  A copy of ARPC-SFS-0374 Orders C-10-445640, U.S. Army Reserve Personnel Center (ARPERCEN), dated 31 October 1994 show he was reassigned from the USAR Control Group (Reinforcement) to the Retired Reserve effective 14 October 1994.

7.  He provided a copy of a letter from the Transition and Separations Branch, 
St. Louis, which states, in pertinent part, although he did obtain 15 years of qualifying service as shown on his ARPC Form 249-E, he was not issued a
15-year letter.  His request was denied and he was advised to appeal to the ABCMR for correction of his record.
8.  The current ARPC Form 249-2-E provided by the applicant shows he has
15 years and 7 days of creditable service for retirement.  This form also shows he served 7 years in a USAR status.

9.  There is no evidence or indication in the available record which shows he applied for retirement under Title 10, U.S. Code, section 12731a (Temporary Special Retirement Qualification Authority) or that he was issued a 15-year letter upon his transfer to the Retired Reserve.

10.  Army Regulation 135-180 (ARNG and Army Reserve - Qualifying Service for Retired Pay Non-Regular Service), indicates, in pertinent part, that each Reserve component Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing within 1 year after he/she completes at least 15 but less than 20 years of qualifying service under Title 10, U.S. Code, Section 12731a and 12731b.

11.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), chapter 6, provides the eligibility criteria for transfer to the Retired Reserve.  It provides, in pertinent part, that assignment to the Retired Reserve is authorized, provided that eligible Soldiers request transfer and have reached the age of 37 and have completed a minimum of 8 years of qualifying Federal service or have reached the age of 37, completed a minimum of 8 years of qualifying Federal service, and served at least 6 months of active duty in time of war or national emergency.  

12.  Title 10, US Code, Section 12731 allows Reserve Component Soldiers who were involuntarily separated because of medical unfitness between 1 October 1991 and 31 December 2001 to elect transfer to the Retired Reserve for Reserve retirement pay at age 60 based on a minimum of 15 years of qualifying service toward Reserve Component retirement.  The individual must also have met the requirement of having performed the last 6 years of qualifying service in the Reserve Components.

13.  Title 10, U.S. Code, section 12731a (Temporary Special Retirement Qualification Authority) provided that, during the period 23 October 1992 through 31 December 2001, a member of the Selected Reserve who completed at least 15, but 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.

14.  Title 10, U.S. Code, section 12731(d) states that the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay.  The notice shall be sent, in writing, to the person concerned within one year after the person completes that service.  Section 12738(a) states that after a person is notified that he or she has completed the years of service required for eligibility for retired pay, the person’s eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service unless it resulted directly from the fraud or misrepresentation of the person.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for a 15-year non-regular retirement was carefully considered.  

2.  The evidence of record shows that the applicant was honorably REFRAD on 14 September 1985 due to non-selection for promotion.  He was transferred to the USAR Control Group (Reinforcement) on 17 July 1987.  On 14 October 1994, he was transferred to the Retired Reserve.  

3.  It is reasonable to presume that an administrative oversight occurred on the part of the applicant in that he did not apply for retirement under the temporary special retirement qualification authority.  Nevertheless, the applicant did meet the eligibility requirements and it would now be equitable to show he is eligible for retired pay at age 60.

4.  Accordingly, it would be in the interest of justice to show the applicant was issued a 15-year letter, effective 22 May 2005, and that he be authorized a
non-regular retirement, effective 1 June 2006, based on his actual service computation.

5.  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.









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.  showing the applicant was eligible to apply for early retirement under the Temporary Special Retirement Qualification Authority for retired pay at age 60, that he so applied prior to being assigned to the Retired Reserve on 14 October 1994, and that his application was approved and appropriately processed in a timely manner;

	b.  showing the applicant’s 20 March 2010 application for retired pay was approved with a retroactive effective date of 1 June 2006; and

     c.  paying the applicant all due retired pay retroactive to the date he turned age 60.




      _________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)                                         AR20100013163



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ABCMR Record of Proceedings (cont)                                         AR20100013163



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