IN THE CASE OF:
BOARD DATE: 19 May 2011
DOCKET NUMBER: AR20100025299
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 20-year letter for retirement.
2. The applicant states he completed 17 years and 2 months of active service and 3 years in the Army National Guard.
3. The applicant provides:
* DD Form 108 (Application for Retired Pay Benefits)
* DD Form 2656 (Data for Payment of Retired Personnel)
* Army National Guard Retirement Points History Statement
* Direct Deposit Switch Authorization
* National Guard Bureau [NGB] 22A (Correction to NGB Form 22)
* DD Form 214 (Report of Separation from Active Duty)
* Army National Guard Retirement Credits Record
* Letter, dated 12 September 2008, from the Departments of the Army and the Air Force
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 applicants 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 applicants 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 13 January 1945. Having completed 17 years,
2 months, and 6 days of active duty service, he enlisted in the Army National Guard on 26 April 1979. He was honorably discharged from the Army National Guard on 25 April 1982.
3. His Army National Guard Retirement Points History Statement, dated
3 September 2008, shows he completed 20 years, 2 months, and 7 days of qualifying service for retired pay. The statement also shows his last 3 years of qualifying service were in a Reserve Component.
4. On 12 September 2008, the State Benefits Advisor (Arizona Army National Guard), Departments of the Army and the Air Force informed him he was not eligible for retired pay because the law required him to serve the last 8 years in the Selected Reserve.
5. Title 10, U.S. Code, section 12731 provides that a non-regular service member is entitled, upon application, to retired pay if the person is at least
60 years of age; had performed at least 20 years of qualifying service the last
6 years of qualifying service while a member of a Reserve Component, except
that in the case of a person who completed the service requirements before
5 October 1994, the number of years of such qualifying service under this paragraph shall be eight. The National Defense Authorization Act of 2005 changed the law, effective 27 April 2005, by removing a minimum Reserve Component service requirement.
DISCUSSION AND CONCLUSIONS:
1. Although he completed 20 years, 2 months, and 7 days of creditable service for a non-regular retirement at age 60, only his last 3 years of qualifying service were in a Reserve Component. He completed his 20th qualifying year in 1982; therefore, the law in effect at the time required him to have earned the last
8 years of qualifying service in a Reserve Component.
2. Based on the foregoing, there is no basis for granting the applicants request.
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) AR20100025299
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ABCMR Record of Proceedings (cont) AR20100025299
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