IN THE CASE OF:	  

		BOARD DATE:	  8 February 2011

		DOCKET NUMBER:  AR20100020259 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 22 July 1964 to show he completed 3 years of active service instead of 2 years, 11 months, and 2 days.

2.  The applicant states the requested credit of an additional 29 days of active service would allow him to retire from the U.S. Army Reserve (USAR).  He originally enlisted for 3 years and his original separation date was 20 August 1964.  He was told at Fort Hamilton, NY, to either reenlist or be discharged.  His request to finish his enlistment at Fort Hamilton, NY, was denied after he disembarked from the ship.  The credit affects his entitlement to non-regular retirement at age 60.  He spent a long time researching this issue.  His former USAR unit was disbanded due to reduction in Army strength.  At the time, he had to travel 300 miles from Kansas to Missouri to complete his required drills.  There was no reference to research retirement procedures and each time he inquired, it took anywhere from 3 to 6 months to get a response and most times the response would simply ask for additional information.  He completed 26 years of service of which 19 years qualify for retirement purposes.  Granting him a full year in 1964 would allow him to retire with 20 years.  His early discharge in 1964 was beyond his control.  He was not allowed to complete the 29 days of service.

3.  The applicant provides his DD Form 214 for the period ending 22 July 1964.


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 records show he was born on 29 December 1942.  He enlisted in the Regular Army for a period of 3 years on 21 August 1961 and held military occupational specialty 911.10 (Medical Specialist).

3.  His records also show he completed 1 year, 2 months, and 9 days of foreign service in Europe.

4.  He was honorably released from active duty on 22 July 1964 under the provisions of paragraph 7 of Army Regulation 635-205 (Discharge and Release Convenience of the Government) as an overseas returnee.  The DD Form 214 he was issued shows he completed 2 years, 11 months, and 9 days of creditable active service.  He was transferred to the USAR Control Group to complete his remaining service obligation.

5.  He remained in the USAR from 23 July 1964 through 13 June 1965.  He then enlisted in the U.S. Air Force for a period of 4 years on 14 June 1965.  He was honorably discharged on 13 June 1969.  The DD Form 214 he was issued shows he completed 3 years, 9 months, and 23 days of creditable active service during this period.

6.  After a break in service, he again enlisted in the USAR on 1 December 1975.  He served through a 2-year reenlistment on 28 November 1977, two 6-year reenlistments on 7 November 1979 and 7 November 1985, and a 3-month extension on 7 November 1991.

7.  On 30 September 1992, Headquarters, 85th Division (Training), Arlington Heights, IL, published Orders 96-27 releasing him from his assignment and transferring him to the USAR Control Group (Reinforcement) effective 1 October 1992 by reason of having fulfilled his Ready Reserve obligation.
8.  His USAR Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points) shows he completed 16 years, 11 months, and 27 days of qualifying service toward nonregular retirement.  A breakdown, in part, of this form is as follows:

Beginning Date
Ending Date
Status
Inactive Points
Member-ship Points
Active Duty Points
Total Points
Qualify for Retirement
19941201
19951130
USAR
0
15
0
15
0
19891201
19901130
USAR
No 
Record
No 
Record

19630821
19640722
RA
0
0
331
331
1








Total


0
15
0
3372
16  11  27
9.  Army Regulation 635-205 in effect at the time set forth the basic authority for the separation of enlisted personnel for the convenience of the government.  Paragraph 7 governed the separation of enlisted personnel with less than 3 months remaining to serve.  Paragraph 7a pertained to overseas returnees.  It stated that commanders were authorized to order separation for the convenience of the government of enlisted personnel for return to the States.  Enlisted members of the Regular Army and USAR, who upon arrival had less than 3 months remaining before expiration of term of service, would be discharged for the convenience of the government, released from active duty, and returned to their former National Guard or USAR status or released from active duty and transferred to the USAR.

10.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214 and contains item-by-item instructions for preparation of the DD Form 214.  It states that the effective date of separation will be the actual separation date, which may be earlier than the contractual date if a Soldier is separated early.

11.  Title 10, U.S. Code, section 12731, states a person is entitled upon application to retired pay if the person is at least 60 years of age and has performed at least 20 years of service as computed under section 12732 of this title.

12.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers.  In pertinent part, it provides that an annual Statement of Retired 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be credited with 29 days of active service which would, in effect, give him 20 qualifying years of service and allow him to retire at age 60.

2.  With respect to his initial enlistment in 1961, the evidence of record shows he enlisted on 21 August 1961 and he was honorably released from active duty on 22 July 1964.  He was separated under the provisions of paragraph 7, Army Regulation 635-205, which provided for the early separation of members returning from overseas with less than 3 months until their expiration of term of service.  There is no indication his separation date is incorrect or that the applicant remained on active duty an additional 29 days.

3.  Additionally, there is no evidence in his records and he did not submit substantiating evidence that shows he requested to remain on active duty at the time and/or that he was denied.  The DD Form 214 issued to him upon his separation confirms he was released from active duty on 22 July 1964.  As a result, there is insufficient evidence to support granting the requested relief.  

4.  With respect to nonregular retirement, the ARPC Form 249-E is a verification record of points earned from all sources in a retirement year and determines if that year is creditable towards 20 years of qualifying service for retired pay.  In this case, the applicant's ARPC Form 249-E shows he completed 16 years, 11 months, and 27 days of qualifying service for nonregular retirement.  But even if he had stayed on active duty until 20 August 1964, he would have only had    29 additional qualifying days, not an additional full qualifying year.

5.  It is acknowledged that his ARPC Form 249-E does not reflect an entry for retirement year 1 December 1989 through 11 November 1990.  However, this form, which he should have been receiving on an annual basis, shows he completed only 16 years, 11 months, and 27 days of qualifying service for retired pay.  If that statement was wrong, he should have taken steps to correct it at the time.  If it is wrong, he may still work with U.S. Army Human Resources Command, Fort Knox, KY, to have it corrected by providing evidence of additional retirement points earned.

6.  In order for him to receive retired pay at age 60, he did not need to have a military status at the time of application for retired pay, but he must have completed a minimum of 20 years of qualifying service.  Since he only completed 16 years, 11 months, and 27 days, the applicant did not qualify for the issuance of a 20-year letter and is therefore ineligible for retired pay at age 60.

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 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)                                         AR20100020259



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ABCMR Record of Proceedings (cont)                                         AR20100020259



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