IN THE CASE OF:	  

		BOARD DATE:	    10 February 2011

		DOCKET NUMBER:  AR20100021732 


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 a waiver to gain eligibility for non-regular Reserve retirement. 

2.  The applicant states in all the years he served in both the Illinois Army National Guard (ILARNG) and U.S. Army Reserve (USAR), he was never advised he could qualify for retirement benefits.  He claims that had he been aware of this, he would have made sure each year of his service was a qualifying year.  He further states he completed 13 years of qualifying service and if the points earned in the 18 non-qualifying years were added he would have a total of 485 points.  He claims he has 7 qualifying years (350 points) of the total necessary to attain the 20 qualifying years necessary to be eligible for retired pay.  He further states if the 485 points earned during the 18 non-qualifying years were applied properly it could add 9 additional qualifying years to his existing 13 good years and give him 22 years of qualifying service.

3.  The applicant provides:

* a U.S. Army Human Resources Command, St. Louis, MO
(AHRC-STL), Transitions and Separations Branch memorandum, dated 9 June 2010
* an AHRC Form 249-2-E (Chronological Statement of Retirement Points), dated 5 June 2008
* a USAR discharge order, dated 4 September 2001


* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 21 March 1971

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 record shows he initially entered the USAR on 15 June 1970 and he served in the USAR and ILARNG until 4 September 2001, at which time he was discharged due to the expiration of his service obligation.

3.  The applicant's record shows he was promoted to the rank/grade of sergeant first class (SFC)/E-7 on 14 May 1987 and that this is the highest rank/grade he attained during his military service.  It further shows his last USAR unit assignment was with the USAR Control Group (IMA (Individual Mobilization Augmentee)).

4.  An AHRC Form 249-2-E in his Official Military Personnel File (OMPF) shows he accrued 1,511 retirement points and he completed a total of 13 years of qualifying service for non-regular Reserve retirement between 15 June 1970 and 4 September 2001.  It also shows he failed to accrue the required 50 retirement points for a qualifying year for the Retirement Year Ending (RYE) on 14 June 1972 and for the all the RYEs between 14 June 1985 through his discharge on
4 September 2001.

5.  On 9 June 2010, in reply to his retirement application, a letter from the
AHRC-STL informed the applicant that under the governing law, a Reserve Soldier must have completed a minimum of 20 qualifying years of service in order to be eligible for retired pay at age 60.  He was further advised that under the current law his service did not fulfill the requirements for entitlement to retirement benefits.


6.  Title 10, U.S. Code, section 12731 (Age and Service Requirements) provides the legal authority for non-regular Reserve retirement.  It states in order to qualify for non-regular retirement at age 60, a member must have performed at least 20 years of qualifying service, the last 8 of which had to be performed in a qualifying Reserve Component.  (During the period October 1991 to December 2001, the requirement to serve the last 8 years in an RC was amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero years.)

7.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, U.S. Code, chapter 67, sections 1331 to 1337.  This regulation specifies, in pertinent part, that to be eligible for retired pay an individual must have attained age 60 and completed a minimum of 20 years of qualifying service and that subsequent to 1 July 1949, qualifying service is granted only for each year of service an individual earns 50 or more retirement points.

8.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength) 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's contention that he should be granted a waiver and sufficient service to qualify for non-regular Reserve retirement at age 60 was carefully considered; however, there is insufficient evidence to support this claim.

2.  By law and regulation, in order to be eligible for non-regular Reserve retirement and retired pay at age 60, a member must complete a minimum of 
20 years of qualifying service and that qualifying service is granted only for each year of service an individual earns 50 or more retirement points.  The law provides no provisions for waiving the age and service requirements for 
non-regular retirement.  


3.  The evidence of record contains an ARPC Form 249-E that confirms between 15 June 1970 and 4 September 2001 the applicant completed only 13 years of qualifying service for non-regular retirement.  It further confirms he did not accrue the required 50 retirement points for the period between 15 June 1971 and
14 June 1972 and the periods between 14 June 1985 and 2 September 2001.

4.  The applicant, as an active member of the Reserve Component, should have been receiving annual ARPC Forms 249-E.  He could have raised any questions concerning his points/qualifying years of service at any time.  Absent any evidence of the applicant’s active involvement in the USAR between 1985 and 2001, and/or confirming additional qualifying service, there is an insufficient evidentiary basis to support granting the requested relief. 

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20100021732



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ABCMR Record of Proceedings (cont)                                         AR20100021732



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