IN THE CASE OF:	  

		BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100020630 


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 military records to show he completed 20 qualifying years for a non-regular retirement, received a 20-year letter for such service, and is entitled to receive retired pay at age 60.

2.  The applicant states his military records currently show he has completed only 19 years, 11 months, and 24 days of qualifying service for a non-regular retirement, even though he has completed a total of 26 years, 11 months and 
11 days of service.

3.  The applicant provides no additional documents.

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.  On 11 July 1969, the applicant was inducted into the Army of the United States for a period of 2 years.  He completed his initial training and was awarded military occupational specialty 11F (Infantry Operations and Intelligence Specialist).

3.  The applicant served in the Republic of Vietnam from 2 September 1970 to 
3 July 1971.  Upon return to the United States, he was released from active duty 6 days early and transferred to the United States Army Reserve (USAR).  He had attained the rank of sergeant, pay grade E-5 and had completed 1 year, 
11 months, and 24 days of creditable active service.

4.  On 1 July 1975, the applicant was discharged from the USAR.

5.  On 12 August 1978, the applicant enlisted in the Army National Guard (ARNG) and he was discharged on 11 August 1993 with 15 years of qualifying ARNG service.

6.  On 12 August 1993, the applicant enlisted in the USAR and completed an additional 3 qualifying years of non-regular service prior to transfer to the Retired Reserve.

7.  An ARPC Form 249-E (Chronological Statement of Retirement Points) dated 
29 December 2010, shows the applicant completed a total of 19 years, 
11 months, and 24 days of qualifying service towards a non-regular retirement at age 60.

8.  The applicant was born on 27 August 1949, and attained age 60 on that day in 2009.

9.  Title 10, U.S. Code (USC), Chapter 1223 (Retired Pay for Non-Regular Service), Section 12731 (Age and Service Requirements) provides that a person is entitled, upon application, to retired pay if the person is age 60 and has performed at least 20 years of qualifying service.  While a qualifying year is determined to be a year in which a minimum of 50 retirement points have been credited for a reservist, it is a full year (365 or 366 days, as applicable) for a member of the Regular Army.

10.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) states that annual or terminal statements of retirement points (1) give a permanent record of the total retirement points a Soldier earns during a retirement year; (2) tell the Soldier whether he or she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status; and (3) give the Soldier an opportunity to request correction of errors in the statement.

11.  Section 12731(d) of 10, USC, states the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay.  The notice shall be sent, in writing, to the person concerned within one year after the person completes that service.  Section 12738(a) states that after a person is notified that he or she has completed the years of service required for eligibility for retired pay, the person’s eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service unless it resulted directly from the fraud or misrepresentation of the person.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his military records should be corrected to show that he completed 20 qualifying years for a non-regular retirement, received a 20-year letter for such service, and is entitled to receive retired pay at age 60.

2.  The available evidence clearly shows the applicant was released 6 days early from his initial period of active service based on his return from the Republic of Vietnam.  He subsequently served a total of 18 years in the ARNG and the USAR, completing 19 years, 11 months, and 24 days of qualifying service for retired pay at 60 years of age. 

3.  Had the applicant been retained on active duty for the entirety of his initial period of active duty, he would have completed the requisite number of years to qualify for a non-regular retirement and he would have been issued a 20-year letter.

4.  He should still have known he did not have 20 years of qualifying service from the statements of retirement points he should have been receiving every year, and there is no evidence of error or injustice in the applicant's case.  However, as a matter of equity and since he was only 6 days short of completing his 20th qualifying year, the applicant's records should be corrected to show he was entitled him to retired pay at 60 years of age. 

5.  However, his retired pay should be calculated on his actual qualifying service of 19 years, 11 months, and 24 days.  

6.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  showing the applicant was eligible to apply for retired pay at age 60, that he so applied prior to turning age 60, and that his application was approved and appropriately processed in a timely manner; and

     b.  paying to the applicant all due retired pay retroactive to the date he turned age 60.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting his records to show he served 20 or more qualifying years of service for retired pay.  




      _______ _   __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)                                         AR20100020630



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ABCMR Record of Proceedings (cont)                                         AR20100020630



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