IN THE CASE OF:	

		BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100019574 


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 record to show that he qualifies for retired pay.

2.  The applicant states that his unit told him he could retire but he has not received any pay.  This is his third request.

3.  The applicant provides a copy of his 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, a former Soldier, was born on 4 April 1949.  He reached the age of 62 on his last birthday.  His ARPC Form 249-E shows he completed
22 years and 28 days of qualifying service for retirement.

3.  He was originally drafted and served in Vietnam.  He then served successively in the Marine Corps Reserve, the Regular Navy, and then in the Regular Army for 13 years, from 4 April 1979 to 15 May 1992.  In 1993 he became an active member of an Army Reserve troop program unit (TPU).

4.  He apparently was found not physically qualified for further service and he was discharged on 4 September 1998.

5.  His ARPC Form 249-E, column 10, shows he had 22 years and 28 days of qualifying service for retirement and a total of 6817 of creditable retirement points.

6.  It also shows the retirement points earned in successive retirement years ending (RYE) as follows:

* RYE 16 May 1993 = 015 total points creditable 
* RYE 16 May 1994 = 052 total points creditable
* RYE 16 May 1995 = 156 total points creditable
* RYE 16 May 1996 = 074 total points creditable
* RYE 16 May 1997 = 061 total points creditable
* RYE 16 May 1998 = 160 total points creditable
* RYE   4 Sep 1998 = 013 total points creditable

7.  Title 10, U.S. Code, section 12731 required that for a Reserve Component (RC) Soldier to qualify for retired pay the final 8 years of qualifying service had to have been performed in a Reserve capacity.  This requirement was changed at various times.  These changes are summarized in the Army Reserve, Non-Regular Retirement Guide as follows:  between 5 October 1994 and
31 December 2001 6 years were required; from 1 January to 30 September 2002 the requirement was again 8 years; 6 years were required from 1 October 2002 to 25 April 2005, when this requirement was terminated altogether.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he had more than 20 qualifying years but has not been authorized retired pay.


2.  The applicant had competed 22 years and 28 days of qualifying years for retired pay at age 60.  However, only the final 5, not 6, of those years were earned in a RC.  The resultant disqualification for retirement pay is an injustice that should be rectified by redistributing his already-earned retirement points. Therefore, it would be appropriate to redistribute a sufficient number of retirement points without changing the final points total.  Thirty-five points should be redistributed to RYE 16 May 1993, thereby making this year a qualifying retirement year.  This recommended redistribution of points should show the applicant completed 20 years of qualifying service with the last 6 years served in an RC.

3.  The applicant should be transferred to the Retired Reserve effective
4 September 1998.  He should also be placed on the Retired List in his retired rank/grade of Sergeant (SGT)/E-5, effective 5 April 2009, the date he turned 60, and restoration of all back retired pay due on this date.

4.  A Survivor Benefit Plan election must be made prior to the effective date of retirement or the Survivor Benefit Plan will, by law, default to automatic Survivor Benefit Plan 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.

5.  In view of the foregoing, the applicant's records should be corrected as recommended 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 35 points to RYE 16 May 1993, making this RYE a qualifying year for retirement;

	b.  showing the applicant completed 20 years of qualifying service for nonregular retirement with at least the last 6 years served in the USAR;

	c.  transferring him to the Retired Reserve effective 4 September 1998;

	d.  showing he applied for retirement to be effective on 5 April 2009 (his 60th birthday) and that his application was processed in a timely manner; and

	e.  paying him all back retirement pay effective on this date.



      ___________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)                                         AR20100019574



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ABCMR Record of Proceedings (cont)                                         AR20100019574



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