DOCKET NUMBER:  AR20100014058 


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 correction of his records to show he was eligible for non-regular retirement.

2.  The applicant states his request is based on exemplary service to the U.S. Army and the government and compassion due to his wife's breast cancer and the ensuing complications.  He adds that he applied for retired pay in May 2006 and received notification on 23 April 2007 that his request for retired pay was denied.  He further states that if he had known his service would be considered inadequate, he would have taken an additional correspondence course during the year he was on extensive travel and did not obtain 50 retirement points.

3.  The applicant provides a copy of a U.S. Army Human Resources Command, St. Louis, MO (HRC-STL) letter; a copy of a retirement points inquiry; and a copy of an Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points), dated 27 September 2007.

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 on 5 May 1947.  He served in the Regular Army as a commissioned officer for more than 14 years prior to transferring to the U.S. Army Reserve (USAR) on 16 June 1985.  The highest rank/grade he held was lieutenant colonel (LTC)/O-5.  He served in the USAR until he transferred to the Retired Reserve on 19 August 1997.

3.  There is no available evidence he was issued a Notification of Eligibility for Retired Pay at Age 60 (commonly known as a 20-year letter) showing he was eligible for non-regular retired pay at age 60.

4.  He provides a copy of an HRC-STL letter to his elected representative, dated 19 September 2007, which states he has the last 7 qualifying years of service in the Reserve component and is, therefore, not eligible for retirement.

5.  His  Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points), dated 28 September 2010, shows he had 22 years of qualifying service for retired pay purposes.  It also shows his last
7 qualifying years were earned in the Reserve component.  During his retirement year ending (RYE) 13 January 1988, he only earned 43 points for retirement purposes.

6.  Department of Defense Instruction Number 1215.07, Subject:  Service Credit for Reserve Retirement, dated 18 November 2005, Incorporating
Change 1, November 7, 2008, paragraph 6.2.1, states that to qualify for non-regular retired pay, at or after the age specified in Title 10, U.S. Code, section 12731, a member must have completed 20 years of qualifying service unless otherwise provided by law.  For members who completed the years of qualifying service before October 5, 1994, the last 8 years of such qualifying service must have been in a Reserve component.

7.  Department of Defense Instruction Number 1215.07, paragraph 6.1.1. - Qualifying Years of Satisfactory Service, states a qualifying year of service for 


non-regular retired pay is a full year, as described in paragraphs 6.1.2 and 6.1.3, during which a Regular or Reserve member is credited with a minimum of
50 retirement points.  Except as otherwise provided by law, an accumulation of 20 such years is one requirement necessary to qualify for non-regular retired pay.  Paragraph 6.1.2.1 states the full-year periods used for the crediting of qualifying years for non-regular retirement shall be based on anniversary years as set out in this Instruction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends if he had known his service would be considered inadequate, he would have taken an additional correspondence course during the year he was on extensive travel and he did not obtain 50 retirement points.  As a senior commissioned officer he should have known the eligibility requirements for non-regular retired pay and also that the only verification of retirement eligibility is a Notification of Eligibility for Retired Pay at Age 60, which evidence indicates he was never issued.

2.  There is no evidence of government error.  However, the applicant successfully completed a total of 22 qualifying years for retired pay, he had 7 qualifying years in the Reserve component, and he was only 7 retirement points short of earning an 8th qualifying retirement year in a Reserve component.  As such, it would be equitable to redistribute 7 retirement points from another RYE to RYE 13 January 1988 to provide him with 8 qualifying years in a Reserve component and, therefore, making him eligible for non-regular retired pay.

3.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the Survivor Benefit Plan will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant's status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer for information and assistance immediately.  A listing of Retirement Services Officers by country, state, and installation is available on the Internet at website:  http://www.armyg1.army.mil/rso/rso.asp.  The Retirement Services Officer 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.  redistributing 7 points to RYE 13 January 1988, making this RYE a qualifying year for retirement;

	b.  showing the applicant completed 20 years of qualifying service for
non-regular retirement with at least the last 8 years served in the USAR;

	c.  showing he applied for retired pay to be effective on 5 May 2007 (his 60th birthday) and that his application was timely received and processed by the Defense Finance and Accounting Service; and

	d.  paying him all retirement back 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)                                         AR20100014058



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ABCMR Record of Proceedings (cont)                                         AR20100014058



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