IN THE CASE OF:
BOARD DATE: 18 August 2011
DOCKET NUMBER: AR20110003278
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 correction of his records to show he was transferred to the Retired Reserve in lieu of discharged.
2. The applicant states he served more than 20 years in the Active Army and Reserve. When he reached age 60 he discovered he had been discharged, not retired. He believes he is entitled to benefits after serving 20 years in the Army and U.S. Army Reserve (USAR). He would like to be recognized as a true veteran and be buried at the Puerto Rico National Cemetery.
3. The applicant provides copies of a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service in the Army National Guard of the Commonwealth of Puerto Rico and as a Reserve of the Army), a U.S. Army Reserve Personnel Center (DARP) Form 249 (Chronological Statement of Retirement Points), and orders discharging him from the USAR.
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. A DD Form 214 shows completion of initial active duty for training (IADT) from 15 August 1966 through 27 January 1967, a period of 5 months and 13 days, with 1 year, 4 months, and 4 days of prior inactive service. He was released from active duty to the Puerto Rico Army National Guard (ARNG).
3. His NGB Form 22 shows he was honorably discharged from the Puerto Rico ARNG on 1 October 1968. It shows he had 3 years, 4 months, and 19 days of service.
4. Item 35 (Record of Assignments) of his DA Form 2-1 (Personnel Qualification Record Part II) shows his periods of service prior to 1 September 1983 as "Reserve 6905-7105," "Reserve 7105-7504," "750517 Enlistment in the USAR (Ready)," "Reserve 7505-7907," "Reserve 7908-8208" [sic], "Reserve 8109-8208," and "Reserve 8209- 8308," and assignment to the 430th Field Service Company effective 1 September 1983.
5. A DARP Form 249, dated 17 November 1985, shows creditable service in the USAR from 11 April 1969 through 10 April 1970, 17 May 1976 through 16 May 1978, and 17 May 1981 through 16 May 1985. All periods of service are shown as USAR. It does not show any periods of active duty. It shows he had 16 years, 6 months and 1 day of service for pay purposes with 7 creditable years toward non-regular retirement. It does not record his non-creditable years [less than 50 points].
6. DARP Orders 0-04-011961, dated 24 April 1991, discharged the applicant from the USAR Control Group (Reinforcement) effective 24 April 1991. These orders directed him to return any military identification he had in his possession.
7. Title 10, U.S. Code, section 12731 (Age and Service Requirements), states a person is entitled upon application to retired pay if the person has attained the eligibility age and has performed at least 20 years of creditable service. A creditable year is one in which a service member earned at least 50 retirement points.
DISCUSSION AND CONCLUSIONS:
1. The applicant states he served more than 20 years in the Active Army and USAR. When he reached age 60 he discovered he had been discharged, not retired.
2. The applicant's service appears to have spanned a period from 1965 through 1991. However, his service prior to April 1969 is not documented sufficiently to determine if the applicant met the requirements for qualifying years of service.
3. The only documented periods of active duty are his IADT and his annual training periods.
4. The applicant provided a copy of the USAR orders discharging him; therefore, his argument that he did not know he had been discharged in 1991 cannot be supported.
5. The applicant is shown to have only 7 qualifying years toward non-regular retirement. Even if his period of service in the Puerto Rico ARNG were fully creditable toward retirement, he would still not have the required 20 years of qualified service to receive retirement benefits. Therefore, no relief is warranted.
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) AR20110003556
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ABCMR Record of Proceedings (cont) AR20110003278
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