IN THE CASE OF:	  

		BOARD DATE:	  2 August 2011

		DOCKET NUMBER:  AR20100029249 


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, correction of his record to show he completed 20 years of creditable service for pay, issuance of a 20-year letter, transfer to the Retired Reserve, and entitlement to retired pay at age 60.

2.  He states he is "requesting retirement pay and the Army is unable to find his orders from his branch of service."

3.  He provides:

* two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a DD Form 214 (Report of Separation from Active Duty)
* three DD Forms 256A (Department of the Army Honorable Discharge Certificate)
* two DD Forms 215 (Correction to DD Form 214)

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 records show he was born on 7 October 1936 and he initially enlisted in the U.S. Army Reserve (USAR) on 21 January 1954.  

3.  He was ordered to active duty for training on 7 April 1957 and was honorably released from active duty on 6 October 1957 and returned to the USAR to complete his service obligation of 4 years and 3 months.  His DD Form 214 shows:

	a.  item 24a(1) (Net Service this Period) - 6 months

	b.  item 24a(2) (Other Service) - 3 years, 2 months, 17 days

	c.  item 24a(3) (Total) - 3 years, 8 months, 17 days

	d.  item 24b (Total Active Service) - 6 months

4.  He enlisted in the Regular Army on 30 December 1965 and served in military occupational specialty (MOS) 94B (Cook).  He was honorably discharged on       4 February 1968 for the purpose of immediate reenlistment.  His DD Form 214 shows:

	a.  item 22a(1) (Net Service this Period) - 2 years, 1 month, 5 days

	b.  item 22a(2) (Other Service) - 11 years, 11 months, 11 days

	c.  item 22a(3) (Total) - 14 years, 0 months, 16 days

	d.  item 22b (Total Active Service) - 5 years, 9 months, 22 days

5.  He reenlisted in the Regular Army on 5 February 1968 and served in primary MOS 62K (Grader Operator).  He was honorably discharged on 4 February 1974 and not transferred to any Reserve component.  His DD Form 214 shows:

	a.  item 18a (Net Active Service this Period) - 6 years, 0 months, 0 days

	b.  item 18b (Prior Active Service) - 5 years, 9 months, 22 days

	c.  item 18c (Total Active Service) - 11 years, 9 months, 22 days

	d.  item 18d (Prior Inactive Service) - 8 years, 2 months, 24 days

	e.  item 18e (Total Service for Pay) - 20 years, 0 months, 16 days

6.  His record contains an AGUZ Form 249 (Chronological Record of Military Service), dated 13 November 1974, which shows a computation of his combined service in both the USAR and the Regular Army was conducted and determined he had 16 years, 0 months, and 16 days of total service [4 years less than the entry on his most recent DD Form 214].  This form also shows it was determined he had 11 years, 1 month, and 5 days of qualifying service for retirement.

7.  His record contains (and he also provides) a DD Form 215, dated 29 November 1974, which shows his DD Form 214 for the period ending 4 February 1968 was amended to show, in pertinent part:

	a.  item 22a(2) (Other Service) - 7 years, 11 months, 11 days [4 years less than the original entry]

	b.  item 22a(3) (Total) - 10 years, 0 months, 16 days [4 years less than the original entry]

8.  His record contains (and he also provides) a DD Form 215, dated 2 December 1974, which shows his DD Form 214 for the period ending 4 February 1974 was amended to show, in pertinent part:

	a.  item 18d (Prior Inactive Service) - 4 years, 2 months, 24 days [4 years less than the original entry]

	b.  item 18e (Total Service for Pay) - 16 years, 0 months, 16 days [4 years less than the original entry]

9.  His record is void of any evidence and he has not provided any evidence showing he served any service that was not previously accounted for in the service computation depicted on his AGUZ Form 249.

10.  He turned 60 on 7 October 1996 but he did not submit an application for retired pay at that time.

11.  Title 10, U.S. Code, sections 12731-12737 authorize retired pay for Reserve Component (RC) military service.  To be eligible for retired pay under this law, a reserve Soldier upon attaining age 60 must have completed a minimum of 20 qualifying years.  After 1 July 1949, a qualifying year is defined as a year in which at least 50 retirement points are earned.  

12.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, states 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, and on 26 April 2005 this requirement was reduced to zero years.  This regulation also specifies, in part, that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his record to show he completed 20 years of creditable service for pay, issuance of a 20-year letter, transfer to the Retired Reserve, and entitlement to retired pay at age 60.

2.  Evidence shows an administrative error which was made on his DD Form 214 for the period ending 4 February 1968 made it appear as though he had completed 4 more years of inactive service than he had actually completed at the time.  This error was carried forward to his DD Form 214 for the period ending 4 February 1974.  These errors were identified and corrected when his service was computed on 13 November 1974.

3.  The applicant’s records clearly show that between 21 January 1954 and 4 February 1974, he only completed 16 years, 0 months, and 16 days of total service and earned only 11 years, 1 month, and 5 days of qualifying service for retirement.  He has provided no evidence to substantiate his contention that he earned at least 20 years of qualifying service for retirement.  Unfortunately, the applicant is not entitled to receive retirement 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)                                         AR20100029249





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ABCMR Record of Proceedings (cont)                                         AR20100029249



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