IN THE CASE OF:	  

		BOARD DATE:	    18 January 2011

		DOCKET NUMBER:  AR20100014886 


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, a transfer to the Retired Reserve and entitlement to retired pay at age 60.

2.  The applicant states that on 2 October 2008, the Human Resources Command determined he was not eligible for retired pay.  However, he was never notified that he was not eligible for the pay, he found out he was not eligible when he checked with the Santa Fe, NM National Guard.  He received discharge orders, dated 26 September 2001, a letter stating he had completed 20 years of service, and an application for retired pay which was to be filed prior to his 60th birthday.  He believed he had completed qualifying service for the pay.  He has carried a Retired Reserve Identification Card since approximately 2003 that was issued through DEERS verifying his eligibility.  He contends he also believed he was transferred to the Retired Reserve and that under Title 10, U.S. Code (USC), Chapter 1223, he completed the required service for pay.

3.  The applicant provides a letter, dated 19 September 2001; discharge orders; an Honorable Discharge Certificate; a DD Form 108 (Application for Retired Pay Benefits); Army National Guard Retirement Points History Statement, dated
9 July 2008; an AHRC Form 249-2-E (Chronological Statement of Retirement Points); and a DD Form 214 (Certificate of Release or Discharge from Active Duty).



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.  Records available to the Board indicate the applicant entered the Army National Guard as a commissioned officer on 20 July 1973 and he entered the Regular Army 13 August 1974.  He was honorably discharged on 15 July 1989.  He apparently accepted a Reserve Component commission the following day.

3.  According to his Chronological Statement of Retirement Points, issued on    18 October 2010, he completed 19 years and 1 day of qualifying service for retirement as of retirement year ending 19 July 1993.  Further, it shows between July 1993 and 2001 he failed to complete any additional years of qualifying service for retirement purposes.  It shows his last 4 years of qualifying service were performed in a Reserve Component.

4.  Orders D-09-145578, dated 26 September 2001, show he was discharged from the USAR.  The additional instructions state, "All Reserve of the Army and Army of the United States Appointments are terminated."  It does not show he was transferred to the Retired Reserve.

5.  His National Guard Bureau (NGB) 22 (Report of Separation and Record of Service), effective 26 March 1993, shows in item 10d (Total Service for Pay), 19 years, 8 months and 7 days.

6.  The Army National Guard retirement point history statement, provided by the applicant, shows on 9 July 2008, he had completed 18 years, 8 months and
7 days of creditable service for retired pay.

7.  The applicant submits a letter he received from the USAR Personnel Command, Subject: Expiration of Retention on Active Status in the USAR, dated 
19 September 2001.  This document states "Under an exception authorized by Army Regulation 140-10, paragraph 7-12, you were retained in the Active Reserve to complete 20 years service for retired pay.  Your records indicate you have completed 20 years, and your exception has expired.  Accordingly, your discharge from the Active Reserve is mandatory by law."

8.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized.  In pertinent part, it provides that an annual Statement of Retirement Points will be prepared for all Soldiers regardless of the number of points awarded.  The purpose of the statement is to give a permanent record of the total retirement points a Soldier earns during a retirement year; to tell the Soldier whether he/she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status; and to give the Soldier an opportunity to request correction of errors in the statement.

9.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, indicates 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 a Reserve Component (RC) Soldier during the period 10 August 1956 - 4 October 1994
* 6 years during the period 5 October 1994 - 31 December 2001
* 8 years during the period 1 January 2002 - 30 September 2002
* 6 years during the period 1 October 2002 - 25 April 2005
* 0 years during the period 26 April 2005 - present

10.  A qualifying year is a year in which the service member earns at least 50 retirement points during their retirement year.  Inactive point credit is earned for inactive duty training, Reserve membership, equivalent instruction, and correspondence courses.  This regulation also specifies, in part, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, a transfer to the Retired Reserve and entitlement to retired pay at age 60.

2.  Although the applicant was associated with the military for more than 20 years and he was notified on 19 September 2001 that he had completed 20 years of service for retired pay his record of retirement points clearly show this was in error.  There is no other record of retirement points available, and he does not provide one (and he should have been receiving them annually), that shows he had completed 20 years of qualifying service.

3.  He contends he believed he was transferred to the Retired Reserve; however, the evidence shows he was discharged from the USAR on 26 September 2001, that he was informed he was being discharge, and he no longer held a military status.

4.  In order to receive retired pay an individual must have attained age 60, completed a minimum of 20 years of qualifying service, and at the time of separation the individual must have served the last 8 years (or 6 years, depending on when he completed his 20th year) of qualifying service as an RC Soldier.  Since he only completed a little more than 19 years of qualifying service, and his last 8 years were not qualifying years he is ineligible for retired pay and only his last 4 years were served in an RC status, he is not eligible for retired pay.

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)                                         AR20100014886



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ABCMR Record of Proceedings (cont)                                         AR20100014886



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