IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100020968 


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 of service for nonregular retirement and receipt of retired pay at 60 years of age.

2.  The applicant states, in effect, there is a 5-year error in his records and wants his U.S. Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points) adjusted to add 4 years of qualifying service.  He further contends ARPC lacks the records for this lost period of service.

3.  The applicant provides copies of his DD Form 2656 (Data for Payment of Retired Personnel) and a letter from U.S. Army Human Resources Command, St. Louis (HRC-STL) [formerly ARPC], Missouri, dated 23 June 2010.

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.  His ARPC Form 249-E, dated 29 December 2010, shows the applicant completed a total of 17 years, 4 months, and 26 days of qualifying service towards retired pay.  This service is shown as follows:

	a.  19 May 1970 to 10 July 1981 – enlisted in the Army National Guard (ARNG) with 7 years, 4 months, and 26 days of qualifying service towards eligibility for retired pay;

	b.  11 July 1981 to 10 July 1983 – commissioned in the ARNG with 2 qualifying years towards eligibility for retired pay;

	c.  11 July 1983 to 10 July 1987 – commissioned in the U.S. Army Reserve (USAR) with 4 qualifying years towards eligibility for retired pay;

	d.  11 July 1987 to 10 July 1988 – commissioned in the ARNG with 1 qualifying year towards eligibility for retired pay; and

	e.  11 July 1988 to 10 July 1995 – commissioned in the USAR with 3 qualifying years towards eligibility for retired pay.

3.  On 31 December 2009, the applicant submitted a DD Form 2656 to request retired pay based on becoming 60 years of age on 29 January 2010.

4.  In a letter, dated 23 June 2010, the Chief, Transition and Separations Branch, HRC-STL, informed the applicant he did not qualify for receipt of retired pay because he had not completed 20 qualifying years of service.  It further informed him that a Reserve Soldier must earn a minimum of 50 retirement points per year for that service to be creditable.

5.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning, removing, and transferring USAR Soldiers.  In pertinent part, it states an officer or enlisted Soldier who has accrued 20 years of qualifying service for retired pay must earn a minimum of 50 retirement points annually to be retained in an active status in the USAR.  If a Soldier does not earn the required 50 retirement points during a retirement year and the Soldier does not request a one-time waiver, the Soldier may request discharge or transfer to the Retired Reserve.

6.  Title 10, U.S. Code, section 12731(d), 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 1 year after the person completes that service.  Section 12738(a) states 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.
7.  Army Regulation 15-185 (Army Board for Correction of Military Records) paragraph 2-9, provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his ARPC Form 249-E contains a 5-year error which should be corrected to show he completed 20 qualifying years of service for nonregular retirement and receipt of retired pay at age 60.

2.  The available evidence of record clearly shows the applicant completed 17 years, 4 months, and 26 days of creditable service towards nonregular retirement.

3.  The applicant has not provided any documentary evidence or a convincing argument showing his record of service is missing 5 creditable years toward nonregular retirement.

4.  In the absence of evidence to the contrary, it is presumed that what the Army did in the applicant's case was correct.  Should the applicant have or be able to obtain documentary evidence, such as pay vouchers, showing active service during periods not already recorded on his ARPC Form 249-E, he may provide those documents to HRC (now at Fort Knox, KY) for update of his retirement points.

5.  In view of the above, the applicant's request should be denied.



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)                                         AR20100020968



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ABCMR Record of Proceedings (cont)                                         AR20100020968



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