IN THE CASE OF:	  

		BOARD DATE:	 6 September 2011 

		DOCKET NUMBER:  AR20110003659 


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 is entitled to a 
15-year Reserve Retirement.

2.  The applicant states he was officially notified he qualified for retirement pay upon reaching age 60. 

3.  The applicant provides copies of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) 15-year retirement notification letter, an annual retirement points statement, an application for retired pay benefits, and a U.S. Army Human Resources Command (HRC), St. Louis, MO, letter denying retired pay.

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 15 March 1950.  He enlisted in the Idaho Army National Guard (ARNG) on 12 May 1969 and served in an active duty training status from 28 July through 26 November 1969.  

3.  He was discharged from the ARNG on 6 August 1975 due to incompatibility with his civilian occupation.

4.  On 9 December 1976, he reenlisted in the ARNG and served in the Active Guard until 7 April 1991 when he transferred to the Inactive Guard.  He was discharged from the Inactive Guard on 10 May 1992.  He accrued in excess of 50 creditable retirement points each year except the first two and last two reporting periods.  

5.  State of Idaho, Military Division Orders 117-17, dated 30 April 1992, discharged the applicant from the ARNG effective 10 May 1992 under National Guard Regulation 600-200, paragraph 8-26y.

6.  The NGB Form 22 issued at this time shows:

	a.  separation in pay grade E-6;

	b.  21 years, 7 months, and 27 days of Reserve Component service with no active Federal service; and

	c.  item 24 (Authorization and Reason), "unable to maintain retention medical standards."

7.  The applicant's medical records show that at the time of his separation he was having significant problems with his knees.  This condition was evaluated by the ARNG and it was recommended that he be medically separated.  

8.  The Idaho ARNG sent the applicant a 15-year retirement notification letter, dated 29 July 2010.  [This letter is not incorporated into his official military personnel file.]  The letter states:

	a.  he completed at least 15 years, but less than 20 years of creditable service for non-regular retirement;

	b.  he no longer met the qualification requirements for membership in the Selected Reserve because of a physical disability; and 

	c.  he qualified for Reserve retired pay at age 60 under Title 10, U.S. Code, section 12731b.

9.  The applicant applied for retirement benefits on 10 October 2010.  

10.  On 4 February 2011, HRC-St. Louis denied the applicant receipt of retired pay.  He was advised that he had completed only 19 years, 5 months, and 22 days of qualifying inactive service.  As such, he was not eligible to receive retired pay.

11.  Title 10, U.S. Code, section 12731a (Temporary Special Retirement Qualification Authority), states that a member of the Selected Reserve who, as of 1 October 1991, has completed at least 15 but less than 20 years of service and is separated by reason of being medically unfit for retention between 23 October 1992 and 31 December 2001 is entitled to non-regular retirement.  The effective date of this provision is 23 October 1992.

12.  Title 10, U.S. Code, section 12731b (Special Rule for Members with Physical Disabilities Not Incurred in Line of Duty), states in the case of a member of the Selected Reserve of a Reserve Component who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for purposes of section 12731 of this title, determine to treat the member as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member has completed at least 15 and less than 20 years of service computed under section 12732 of this title.  The effective date of this provision is 5 October 1999.  The law does not contain any provision allowing for an earlier effective date.

13.  Title 10, U.S. Code, section 12738, states once a Notification of Eligibility for Retired Pay letter is officially issued, eligibility for retirement pay based on non-regular service cannot be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service performed unless these resulted directly from the Soldier's fraudulent misrepresentation.  Administrative errors such as award of too many points can be corrected, but eligibility to the associated retired pay and benefits cannot be withdrawn.

14.  National Guard Regulation 600-200 (Enlisted Personnel Management) states a qualifying year for retirement purposes is a full year in which a Soldier received at least 50 total retirement points.


DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was officially notified he qualified for retirement pay upon reaching age 60.

2.  The HRC-St. Louis letter denying the applicant retirement pay based on his non-regular service is correct as far as it goes.  The applicant did not have 20 years of creditable service for eligibility to a non-regular retirement at the time he was separated from the ARNG in May 1992.  

3.  HRC-St. Louis either did not have or did not deem it appropriate to address the fact that the applicant was issued the 29 July 2010 Notification of Eligibility for Retired Pay letter under Title 10, U.S. Code, section 12731b. 

4.  Regrettably, the eligibility letter is invalid.  The provisions of Title 10, U.S. Code, section 12731b, for retirement eligibility for members, with physical disabilities not incurred in line of duty, was not made into law until 5 October 1999, over seven years after the applicant was separated.

5.  Under the strict interpretation of the law the applicant is not entitled to retired pay.

6.  However, it is inequitable to deny this career Guardsman retirement because his medical problems did not allow him to complete 6 additional months during his last full year of service to meet the 20-year requirement.

7.  Additional factors making a denial inequitable are:

	a.  the applicant provided honorable service spanning a period of over 23 years, of which he is shown to have 19 years, 5 months, and 22 days of creditable service for retirement; 

	b.  the applicant had over 15 years of service as of 1 October 1991 and would have qualified under Title 10, U.S. Code, section 12731a, for a 15-year retirement if he had been retained for 6 months; 

	c.  except for a short break in service in 1975-1976, he was subject to activation or recall in support of a local, state, or national emergency whether in the active or inactive National Guard; and

	d.  although the notification letter was not properly issued, he was told he did qualify for retirement at age 60.  

8.  In order to qualify for retirement the applicant would need 20 years of qualifying service.  Except for the short break in service in 1975-1976, the only periods that the applicant did not meet requirements for retirement were the two periods he was in the Inactive National Guard. 

9.  Therefore, as a matter of equity, it is appropriate to:

	a.  modify the orders transferring the applicant to the Inactive National Guard to show a date of transfer on 14 July 1991 and adjusting his last retirement year ending (RYE) dates to 14 July 1990-13 July 1991 (unit member) and 14 July 1991-10 May 1992 (Inactive Guard); and 

	b.  redistribute 23 retirement points and credit them to his 14 July 1990-13 July 1991 RYE (with no pay due). 

10.  With these corrections, the applicant is shown to have 20 qualifying years for retirement at age 60.

11.  It is appropriate to direct that his original application for retirement be acted upon with retroactive entitlement to receipt of retired pay based on reaching age 60.

12.  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.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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.  showing the applicant transferred to the Inactive National Guard on 14 July 1991 instead of 8 April 1991;

	b.  redistributing 23 retirement points and crediting them to his 13 July1991 RYE, for a total of 50 retirement points (distributed as required between membership and inactive duty training points, no pay due);

	c.  showing the applicant has 20 qualifying years for retirement at age 60; and

	d.  directing that his original application for retirement be acted upon with retroactive entitlement to receipt of retired pay based on reaching 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)                                         AR20110003659



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ABCMR Record of Proceedings (cont)                                         AR20110003659



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