IN THE CASE OF:	  

		BOARD DATE:	  26 July 2011

		DOCKET NUMBER:  AR20100024558 


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, issuance of a 20-year letter, transfer to the Retired Reserve, and entitlement to retired pay at age 60.

2.  The applicant states he was under the assumption at the time of discharge that he had attained sufficient points from his service in the Regular Army (RA) and U.S. Army Reserve (USAR) to qualify for nonregular retirement at age 60.  He contends his command at the 90th Regional Support Command (RSC) was also under this assumption, as they sent forth paperwork requesting his
20-year letter.  A member of the staff at the Transition and Separations Branch of U.S. Army Human Resources Command (HRC) informed him that qualifying to reenter active or reserve duty status at the age of 55, which he would be willing to do, would be improbable at this time due to his present medical conditions.  He concludes that he has tried throughout the years to inquire as to the status of his retirement.

3.  The applicant provides copies of the following documents:

* a letter from a staff member at the HRC Transition and Separations Branch
* a self-authored letter
* a letter from the Commandant of Headquarters, 90th RSC
* an extract from Title 10, U.S. Code, chapter 1233
* his discharge orders


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 was born on 9 January 1955.  He enlisted in the RA on
25 February 1975 and served through 18 February 1982.  He reenlisted in the RA on 9 August 1983 and he continued to serve through a series of immediate reenlistments.

3.  He was honorably discharged on 4 January 1995 under the provisions of the Early Release Program - Special Separation Benefit (SSB) and he was transferred to the USAR.  At the time of his discharge he had completed 18 years and 20 days of creditable active duty service.  He received an SSB payment in the amount of $71,279.46 for participating in the program.

4.  On 13 February 2001, he was honorably discharged from the USAR.

5.  His ARPC Form 249-E (Chronological Statement of Retirement Points) shows he completed 23 years, 3 months, and 23 days of qualifying service toward nonregular retirement.

6.  The applicant provides a letter, dated 28 August 2001, wherein the Commandant of Headquarters, 90th RSC requested the Army Reserve Personnel Center (ARPERCEN) issue him a 20-year letter.

7.  The applicant provides a letter, dated 25 March 2002, which he sent to ARPERCEN inquiring about the status of his 20-year letter.

8.  The applicant provides a letter, dated 8 September 2010, wherein the Chief of the Transitions and Separations Branch of HRC summarized a telephonic conversation he had with the applicant as follows:

	"As stated, you have not been issued a 20-year letter and are not eligible for retirement at age 60 because your last 6 qualifying years of military service were not in a Reserve Component (RC).  Your record reflects that you left the RA in 1995 and joined the USAR.  In 1996 you completed 20 qualifying years of service.  The law in effect at that time stated that to qualify for retirement at age 60 a Reservist must have the last 6 qualifying years in the RC.  Although that law has changed the required qualifying years several times since 1996, the changes were not retroactive.  At the time you had 1 qualifying year in the RC.  Your record also reflects that you remained in an active RC status until 2000, during which time you earned an additional 3 years of qualifying service.  Therefore, you are ineligible for a Reserve retirement.  This command does not have authority to grant any exception to the law."

9.  Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) prescribes policies and procedures for the separation of USAR enlisted Soldiers.  Chapter 11 of this regulation specifies that upon expiration of the Soldier's term of enlistment, reenlistment, or period of statutorily obligated service, the Soldier will be discharged by the separation authority.

10.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 relates to the removal of Soldiers from an active status and states that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.

11.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, (in effect at the time) stated that to be eligible for retired pay an individual does not need to have a military status at the time of application for retired pay, but must have:  (1) attained age 60, (2) completed a minimum of 20 years of qualifying service, and (3) served the last 8 years of his or her qualifying service as an RC Soldier.  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.

12.  Title 10, U.S. Code, subsection 12731(a)(3) provides a person is entitled, upon application, to RC retired pay computed under subsection 12739 of this title if the person:

	a.  has attained the eligibility age applicable under subsection (f) to that person;

	b.  has performed at least 20 years of service computed under section 12732 of this title;

	c.  in the case of a person who completed the service requirements of paragraph (b) before 25 April 2005, performed the last 6 years of qualifying service as a member of an RC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he should be issued a 20-year letter, transferred to the Retired Reserve, and entitled to retired pay at age 60 were carefully considered and determined to lack merit.

2.  The evidence of record shows the applicant was discharged from the RA on 4 January 1995 as a result of his voluntary early release under the SSB program and transferred to the USAR.  At the time of discharge, he had completed 18 years and 20 days of active duty service.  It is unclear why he did not reenlist and/or extend his existing reenlistment to complete 20 years for regular retirement.  However, he received an SSB payment in the amount of $71,279.46 for participating in the program.

3.  Evidence shows that at the time he completed 20 years of qualifying service for nonregular retirement, he had only been in the USAR for 1 qualifying year.  Therefore, he did not fulfill the regulatory and statutory requirement for completing 20 years of qualifying service with the last 6 years served in an RC.

4.  In view of the foregoing, the applicant is not eligible for issuance a 20-year letter, transfer to the Retired Reserve, and entitlement to retired pay at age 60.

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)                                         AR20100024558



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ABCMR Record of Proceedings (cont)                                         AR20100024558



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