IN THE CASE OF:	  

		BOARD DATE:	  14 July 2011

		DOCKET NUMBER:  AR20100029627 


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 retirement at age 60.

2.  He states:

* he had 19 years, 11 months, and 26 days
* he thinks it is unjust he did not receive his retirement over 4 days

3.  The applicant does not provide any supporting documents.

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 17 January 1951.  He enlisted in the Regular Army on 21 October 1970 for a period of 3 years.  He completed training and he was awarded military occupational specialty 63B (wheel vehicle mechanic).  On 16 October 1973, he was honorably released from active duty by reason of early separation of an overseas returnee.  He completed 2 years, 11 months, and     26 days of total active service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.

3.  On 11 December 1981, he enlisted in the USAR for a period of 1 year.  On
24 September 1982 he reenlisted in the USAR for a period of 6 years.  He continued to serve in the USAR on follow-on reenlistments.

4.  Orders 01-033-24, issued by Headquarters, 89th Regional Support Command, Wichita, KS, dated 2 February 2001, reassigned the applicant from his unit of assignment by reason of unsatisfactory participation and assigned him to the USAR Control Group (Annual Training), St. Louis, MO.

5.  Orders D-03-308411, issued by the U.S. Army Reserve Personnel Command, St. Louis, dated 3 March 2003, honorably discharged the applicant from the USAR, effective 7 March 2003.

6.  The applicant's Human Resources Command (HRC) Integrated Web Services (IWS) record contains an ARPC Form 249-E (Chronological Statement of Retirement Points) that shows he completed 19 years, 11 months, and 26 days of qualifying service for a nonregular retirement at the time of his discharge from the USAR.  This statement shows the following:

	a.  During retirement year ending (RYE) 10 December 1999 he earned 15 membership points and 48 inactive duty points for a total of 63 creditable retirement points.  He was credited with one qualifying year for retirement during this RYE, and

	b.  During RYE 10 December 2000 he earned 20 inactive duty points, 15 membership points, and 14 active duty points for a total of 49 creditable retirement points.  He was not credited with a qualifying year for retirement during this RYE.

7.  Title 10, U.S. Code, sections 12731 through 12740 authorize retired pay for Reserve component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.

8.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a indicates 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 a Reserve Component (RC) Soldier.  The requirement to serve the last 8 years in an RC was later amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero (0) 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.

9.  Paragraph 2-8 of that same regulation describes qualifying service as service performed in an active status in a Reserve component or in active federal service.  After 30 June 1949, a reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  It is reasonable to presume that a Soldier with over 19 qualifying years toward a 20-year retirement would not knowingly forfeit a qualifying year if he/she was aware of the situation.  Therefore, it appears that the applicant was not properly advised of the requirements to be eligible for retired pay at age 60.

2.  Evidence of record shows that during RYE 10 December 2000 the applicant earned 49 creditable retirement points, 1 point short of earning the minimum 50 points necessary to be credited with a qualifying year.  However, during RYE 10 December 1999 he earned 63 creditable retirement points exceeding the minimum 50 points requirement for a qualifying year.  Therefore, in the interest of equity and justice, it would be appropriate to redistribute necessary creditable retirement points to RYE 10 December 2000 to make it a qualifying year thereby entitling the applicant to 20-year retirement benefits at age 60.

3.  The evidence of record shows the applicant attained the age of 60 on
1 January 2011.  As a result of the above record correction, he was entitled to begin receiving retired pay effective on that date.  Therefore, it would be appropriate to correct his record to show that he was officially and timely notified of his eligibility for retired pay at age 60.

4.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant's SBP status/coverage.  The applicant is advised to contact his nearest 
Retirement Services Officer (RSO) for information and assistance immediately for information on the SBP and on TRICARE.  A listing of RSOs by country, state, and installation is available on the Internet at: http://www.armyg1.army.mil/RSO/rso.asp

BOARD VOTE:

____X___  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  redistributing creditable retirement points to RYE 10 December 2000 to make it a qualifying year for retirement and showing he completed 20 qualifying years for retirement and was eligible to apply for retired pay at age 60;

	b.  showing that he timely applied for retired pay to be effective 18 January 2011 and it was received and processed by the Defense Finance and Accounting Service in a timely manner; and

	c.  paying the applicant all due retired pay retroactive to the date he turned age 60.



      ___________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)                                         AR20100029627



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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