IN THE CASE OF:	  

		BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100021915 


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 record to show he completed
19 years, 4 months and 9 days of military service with 3,031 retirement points; that the remaining 7 months of service be waived; and that he be granted non-regular retirement and retired pay effective 2002 at age 60.

2.  The applicant states upon joining the Ohio Army National Guard (OHARNG) he was assured his time would be counted toward retirement.  He is requesting what he believes he has coming to him.  He states he was also assured by an administrative officer and two first sergeants that he had enough time to qualify for retirement.  He claims his military service spans 28 years which includes service in the Army from 1959-1962; Navy from 1963-1967; and the balance split between the U.S. Army Reserve (USAR) and Army National Guard (ARNG).  He states he was finally discharged from the Reserve Component (RC) in December 1995.

3.  The applicant states in 2002 he received a packet from the Army Review Boards Agency (ARBA), St. Louis, MO, advising him to complete the packet and return it so his pension could begin at age 60.  He claims the packet was returned and he was informed he did not have enough time to qualify for retirement.  He states for the next 8 years he tried to get this corrected and his time in the OHARNG was not reported correctly.  With this service added to his total, he has 19 years, 4 months, and 9 days of qualifying service for retirement and a total of 3,031 retirement points while only 1,000 points is needed for retirement.

4.  The applicant provides a self-authored letter, dated 27 September 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.  The applicant's record contains an ARPC Form 249-E (Chronological Statement of Retirement Points) that shows the applicant completed the following periods of military service in the components shown:

BEGINNING DATE
ENDING DATE
STATUS OF COMPONENT
841213
951212
USAR
811213
841212
ARNG
810517
811212
BREAK IN SERVICE
750517
810516
USAR
670622
750516
BREAK IN SERVICE
630527
670621
U.S. NAVY (USN)
620901
620526
USAR
590903
620831
REGULAR ARMY (RA)
3.  The ARPC Form 249-E confirms that during the applicant's military service between 3 September 1959 and 12 December 1995, he completed 15 years and 24 days of qualifying service for retirement and 3,031 retirement points.  

4.  The record includes Orders D-12-508792, issued by the U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, dated 12 December 1995.  These orders directed the applicant's honorable discharge from the USAR effective
12 December 1995.  

5.  On 10 January 2002, the Chief, Transition and Separations Branch, U.S. Army Personnel Command (ARPERSCOM), St. Louis, replied to the applicant's application for retired pay (DD Form 108).  The applicant was informed that in 


order to qualify for retirement, a member must complete a minimum of
20 qualifying years. 

6.  The ARPERSCOM official further informed the applicant that an audit of his military records showed he completed 15 years and 24 days of qualifying military service for retirement and accordingly was ineligible to receive retired pay. 

7.  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.)

8.  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.

9.  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 his initial entry into military service on 3 September 1959 and his honorable discharge from the USAR on 12 December 1995, the applicant completed only 15 years and 24 days of qualifying service for non-regular retirement.

4.  The ARPC Form 249-E further confirms the applicant did earn the necessary 50 points per year while serving in the ARNG between 13 December 1981 and 12 December 1984; however, he failed to accrue the required 50 retirement points in any of his last six years of military service from 13 December 1989 and 12 December 1995.

5.  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
13 December 1985 and 12 December 1995, and/or confirming additional qualifying service, there is an insufficient evidentiary basis to support granting the requested relief. 

6.  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)                                         AR20100021915



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ABCMR Record of Proceedings (cont)                                         AR20100021915



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