IN THE CASE OF:	  

		BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20110000523 


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 reconsideration of his earlier request for correction of his military records to show that he was transferred to the Retired Reserve with 20 years of qualifying service for retired pay at age 60.

2.  The applicant states he is submitting this request to provide additional information to explain why there is no record indicating he requested retired pay at age 60.

	a.  He contends he was informed the National Guard Bureau (NGB) has records showing he has sufficient points to warrant being issued a 20-year letter.

	b.  He was a special education teacher and was working toward his Master of Arts in Education during the period 1998 through 2004.  Every Saturday he had a study group; therefore, he requested an alternate drill [training] period or to be placed in an inactive status for a short period, but his request was denied by the first sergeant.

	c.  The first sergeant told him he had 20 years and should get out.  His pay records showed he was being paid for over 20 years.  Accordingly, he called the unit personnel office which confirmed that he was being paid for over 20 years and was advised that he would receive his 20-year letter when he reached age 60 in October 2002.

	d.  When he turned 60 years of age, he attempted numerous times to contact the proper authority requesting information about his retirement.  He was sent from one agency to another and was told he would receive a letter in the mail.

	e.  He quotes from an NGB advisory letter written in 2010 and previously considered by the Army Board for Correction of Military Records (ABCMR).  It recommends that the applicant's time in the inactive Air Force Reserve from 24 November 1965 to 9 July 1966 be extended and movement of points from other years with excess qualifying points to the years between 10 July 1963 and 9 July 1966, which would give him 20 qualifying years for retirement.

	f.  He contends he did not realize how close to 20 qualifying years he was and has been given bad information and the run-around for years.  He was not afforded counseling or information prior to his separation other than being told he had completed 20 years.

3.  The applicant provides copies of the original Record of Proceedings (ROP) and NGB advisory opinion.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090016733 on 8 June 2010.

2.  The applicant provides an additional argument that requires consideration by the Board.

3.  In the original ROP, the Board determined the applicant:

	a.  had served in multiple components of the Armed Forces for a total of 17 years, 4 months, and 8 days;

	b.  had been honorably discharged from the Army National Guard (ARNG) upon completion of his service obligation and expiration of his term of service;

	c.  had not extended or reenlisted, even though there was no evidence showing he was denied extension or reenlistment;

	d.  had failed an Army Physical Fitness Test, but had plenty of time to retest and meet eligibility to reenlist in the ARNG; and

	e.  had received a favorable recommendation by NGB to redistribute his retirement points to credit him with 20 qualifying years.

4.  The ROP further stated that while the Board had redistributed points between qualifying and non-qualifying years for Soldiers in the past, such action is considered on a case-by-case basis.  In the applicant's case, the Board determined there was a lapse of more than 10 years and an arbitrary ruling in his favor without knowing what his records would have shown at the time would cause prejudice to the government.  Such a decision would result in an unfair advantage over those Soldiers who had previously made similar requests and were also denied.

5.  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.  The term "good year" is used to mean a year in which 50 or more retirement points are earned and which counts as a qualifying year of service for benefits at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military records should be corrected to show he was transferred to the Retired Reserve with 20 years of qualifying service for retired pay at age 60 because he was not counseled prior to separation and was led to believe he had completed 20 qualifying years for retired pay.

2.  The applicant states his first sergeant and the personnel office both informed him that he had completed 20 years of qualifying service for retirement.  However, he does not provide any additional documentation showing he was so misinformed.

3.  The applicant argues that he was advised he would receive a 20-year letter because he was being paid for over 20 years of service.  However, there is no documentary evidence supporting his claim.  Furthermore, a non-regular retirement requires completion of 20 years of service wherein the Soldier has acquired a minimum of 50 retirement points.  The applicant has not met this requirement.

4.  The original ROP clearly addressed the recommendation in the NGB advisory opinion concerning a redistribution of retirement points between qualifying and non-qualifying years.  To do so in this case would result in an unfair advantage for the applicant over those Soldiers who had previously made similar requests and were denied.  The applicant has not provided sufficient evidence or argument to overcome the Board's earlier decision.

5.  In view of the above, the available evidence does not adequately show the original ROP and Board decision were in error or unjust.  Therefore, his 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 to amend the decision of the ABCMR set forth in Docket Number AR20090016733, dated 8 June 2010.



      _________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)                                         AR20110000523



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ABCMR Record of Proceedings (cont)                                         AR20110000523



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