IN THE CASE OF:
BOARD DATE: 14 June 2011
DOCKET NUMBER: AR20100028304
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 Reserve retirement letter.
2. The applicant states, in effect, he was unable to attend battle assembly before his Medical Evaluation Board; therefore, he did not receive his 20-year Reserve retirement letter. If he could use the 91 points from the period 13 November 1975 to 3 March 1976, when he was on active duty, he would qualify for the letter. He has elected to receive disability retirement pay in lieu of regular retirement pay. If he can get a 20-year Reserve retirement letter he will be eligible for concurrent receipt of Department of Veterans Affairs (VA) compensation and disability retirement pay.
3. The applicant provides copies of his ARPC Form 249-E (Chronological Statement of Retirement Points), dated 4 November 2010, and the orders directing his permanent retirement effective 4 January 2010.
CONSIDERATION OF EVIDENCE:
1. On 12 June 2008, the applicant was placed on the Temporary Disability Retired List (TDRL), and on 4 January 2010, he was retired due to permanent physical disability, in the rank of sergeant first class.
2. His ARPC Form 249-E, dated 4 November 2010, shows he completed a total of 19 years, 3 months, and 21 days of qualifying service towards retired pay. This service is shown as follows:
a. 13 November to 4 December 1975- Delayed Entry Program - 22 days of qualifying service towards eligibility for retired pay;
b. 5 December 1975 to 3 March 1976 - Regular Army - 2 months and
29 days of qualifying service towards eligibility for retired pay;
c. 26 April 1989 - 25 April 1991- Army National Guard 2 years of qualifying service towards eligibility for retired pay; and
d. 26 April 1991 to 25 April 2008 - U.S. Army Reserve (USAR)
17 years of qualifying service towards eligibility for retired pay.
e. All of his retirement years were qualifying years.
3. His date of birth is 28 June 1957; he will reach age 60 on 28 June 2017.
4. Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) states in paragraph 24a - Criteria for awarding retirement points - Personnel on active duty are awarded 1 point for each calendar day they serve in one of these categories and may not be awarded additional points for other activities while in such status.
5. Title 10, U.S. Code (USC), section 12731 provides the legal authority for age and service requirements for non-regular service retired pay. It states that members are entitled to retired pay when they are at least 60 years of age and have performed at least 20 years of qualifying service.
6. Title 10, U.S. Code, section 12731(d), states the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay. The notice shall be sent, in writing, to the person concerned within 1 year after the person completes that service. Section 12738(a) states after a person is notified that he or she has completed the years of service required for eligibility for retired pay, the person's eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service unless it resulted directly from the fraud or misrepresentation of the person.
7. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-6, states in pertinent part, that a Soldier may not be retained or separated solely to increase retirement or separation benefits. Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement..
DISCUSSION AND CONCLUSIONS:
1. The applicant is not eligible to receive a 20-year Reserve retirement letter because he has not attained at least 20 years of qualifying service. Regrettably, he was retired for physical disability in June 2008, prior to completing 20 years of qualifying service. He has no non-qualifying years to which points could be moved.
2. He contends the 91 points he accumulated between 13 November 1975 and
3 March 1976 should be used to create an additional 12-month period of qualifying service towards retirement. He was credited with 3 months and
21 days of active service for that period. He is not authorized to receive additional credit for the same qualifying period of service.
3. In the absence of evidence to the contrary, it is presumed that what the Army did in the applicant's case was correct.
4. In view of the above, the applicant's request should be denied.
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) AR20100020968
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ABCMR Record of Proceedings (cont) AR20100028304
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