IN THE CASE OF:	  

		BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100023347 


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 his record be corrected by awarding credit for 21 years of qualifying Reserve Component service and eligibility for retired pay at age 60.

2.  The applicant states he was not properly credited for his service in the Individual Ready Reserve.  He states he was in the system from 1973 through his discharge in 1994, which should equate to 21 years of service.  He claims his record is in error and that having been discharged in 1994 indicates to him the Regular Army (RA)/U.S. Army Reserve (USAR) says he has 21 years of service.

3.  The applicant provides the following documents in support of his application:

* DD Forms 214 (Certificate of Release or Discharge from Active Duty) effective 4 December 1975 and 2 May 1991
* USAR Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* NGB Form 23 (Retirement Credit Record)
* Honorable Discharge Certificate, dated 24 October 1994

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 the applicant served in the following components for the periods indicated:

* RA – 17 December 1973-4 December 1975
* Army National Guard (ARNG) – 5 December 1975-31 August 1982
* Inactive National Guard (ING) – 1 September 1982-31 October 1982
* ARNG – 1 November 1982-30 April 1985
* ING – 1 May 1985-30 June 1986
* ARNG – 1 July 1986-30 June 1987
* USAR – 1 July 1987-24 October 1994

3.  The record contains an ARPC Form 249-E that confirms the applicant completed a total of 12 years, 2 months, and 15 days of qualifying service for retirement and 1707 creditable points during the entire period of his military service between 17 December 1973 and 24 October 1994.

4.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular 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 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.

5.  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.

6.  Chapter 2 of Army Regulation 140-185 provides guidance on crediting and awarding retirement points.  Paragraph 2-1 provides the criteria for crediting retirement points.  It states the limitations on the number points which may be credited to a Soldier during a retirement year are as follows:

* maximum 365 points (366 during a leap year)
* maximum 60 points for inactive duty training (IDT) and membership points
* partial year if a Soldier is separated or removed from active status during the retirement year he/she may be credited with proportional maximum number of IDT points for that year
* maximum 15 points for membership for each year in an active status

7.  Paragraph 2-2 of Army Regulation 140-185 provides the criteria for earning retirement points.  It states retirement points may be earned by USAR Soldiers for active duty or, while in an active Reserve status, for active duty for training (ADT), initial active duty for training, involuntary ADT, annual training, IDT, Reserve membership, and for other identified activities, such as training events not completed during the above categories.  The maximum membership points granted per retirement year is 15.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention he should have received qualifying service credit and retirement points during his entire period of military service between 1973 and 1994 has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, qualifying service and retirement points are credited based on completion of specific activities.  In order to be credited with a qualifying year of service for retirement a member must earn a minimum of 50 points.  Membership points are limited to 15 per retirement year and there is no automatic entitlement to qualifying years or retirement points based solely on being in military service.

3.  The evidence of record confirms that during the applicant's military service between 17 December 1973 and 24 October 1994, he was credited with a total of 12 years, 2 months, and 15 days of qualifying service for retirement and 1707 retirement points.  Absent any evidence the applicant was not credited with retirement points he earned during any period he was in an active status, there is an insufficient evidentiary basis to grant the requested relief.

4.  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 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 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)                                         AR20100023347



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ABCMR Record of Proceedings (cont)                                         AR20100023347



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