BOARD DATE: 16 February 2011
DOCKET NUMBER: AR20100019653
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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he retired so he may qualify for CRSC (Combat-Related Special Compensation).
2. The applicant states, in effect, his application for CRSC was denied because he is not retired.
3. The applicant provides his DD Form 214.
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 applicants 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 applicants 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 record shows he enlisted in the Regular Army on 31 January 1985. He completed training and was awarded military occupational specialty 88M (Motor Transport Operator). The highest rank/grade he attained while serving on active duty was specialist/E-4.
3. On 30 January 1988, he was honorably released from active duty and he was transferred to a Reserve Component troop program unit, to serve the remainder of his service obligation. His DD Form 214 confirms he completed 3 years of net active service during this period of active duty.
4. His Army Reserve Personnel Center (ARPC) Form 249-E (Chronological Statement of Retirement Points), indicates he served in the U.S. Army Reserve from 1 February 1990 to 15 December 1998. During this period, he successfully completed 4 qualifying years toward nonregular retirement eligibility.
5. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements the statutory authority governing what constitutes qualifying service for retired pay for nonregular service in the Reserve Components. Chapter 2, in pertinent part, states that to be eligible for retired pay, an individual must have attained the age of 60 and completed a minimum of 20 years of qualifying service. A qualifying year is defined as a year of service during which a Reserve Component Soldier earns at least 50 retirement points. Paragraph 2-3 provides, in pertinent part, that a twenty-year letter will be issued to Reserve Component Soldiers within 1 year after they complete 20 years of qualifying service for retirement. This letter will be issued by the Commander, U.S. Army Human Resources Command (HRC), and once issued, may not be withdrawn or revoked.
6. Army Regulation 635-200 (Enlisted Separations), chapter 12 (Retirement for Length of Service), provides that a Soldier of the Regular Army who has completed 20, but less than 30 years of active federal service in the United States Armed Forces may, at the discretion of the Secretary of the Army, be retired at his or her request. The Soldier must have completed all required service obligations at the time of retirement. Upon retirement, the Soldier is transferred to the United State Army Reserve (USAR) (Retired), and remains in this status until active service before retirement and the period served in the USAR (Retired) equals 30 years. It further provides that the Soldiers of the Regular Army must be on active duty when they retire.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for correction of his DD Form 214 to show he retired so he may qualify for CRSC has been carefully considered; however, there is insufficient evidence to support his request.
2. The evidence of record confirms he completed three qualifying years toward regular retirement eligibility, and seven qualifying years toward nonregular retirement eligibility. Nonregular and regular retirement eligibility rules require a Soldier to serve a minimum of twenty qualifying years in the Reserve Component, or on active duty, depending on the type of retirement sought; therefore, he does not meet the eligibility criteria for either a nonregular or regular retirement.
3. In view of the foregoing, there is no basis for granting the requested relief.
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) AR20100017638
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ABCMR Record of Proceedings (cont) AR20100019653
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