IN THE CASE OF:	  

		BOARD DATE:	  15 December 2012

		DOCKET NUMBER:  AR20110004037 


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, in effect, that his records do not show he received retirement points for:

* 4 days of annual training (AT)
* 3 days of active duty for training (ADT)
* Completion of the Transportation Officer Basic Course (Non-Resident)

3.  The applicant provides:

* Letter from U.S. Army Human Resources Command (HRC), St. Louis, MO
* Four orders 
* Certificate of course completion 

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 21 December 1950.  He was inducted into the Army of the United States (AUS) on 12 May 1970 and served on active duty until he was honorably released on 13 January 1972 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training). 

3.  He served in the USAR until he was discharged on 11 May 1980.  On 17 June 1981, he was commissioned as a 2nd lieutenant.

4.  His record contains a DA Form 1059 (Service School Academic Evaluation Report) which shows he was enrolled in and completed the Transportation Officer Basic Course (Non-Residence) during the period 23 June 1983 through 17 October 1985.

5.  He submitted a copy of a certificate issued by the Army Institute for Professional Development, Training Support, Center, Newport News, VA, dated 17 October 1985, which shows he completed the Transportation Officer Basic Course (Non-Resident).  

6.  On 17 October 1985, he was promoted to 1st lieutenant, and to captain on
16 October 1990.  He continued to serve in the USAR on follow-on assignments.  
7.  He submitted the following orders issued by the Headquarters, 91st Division (Exercise), Fort Baker, CA:

* Order Number 045-015, dated 1 December 1994, ordered him to AT 1 day on 3 December 1994
* Order Number 058-022, dated 28 December 1994, ordered him to AT for 2 days on 7 January 1995
* Order Number 062-032, dated 5 January 1995, ordered him to AT for 
1 day on 28 January 1995
* Order Number 127-115, dated 14 April 1995, ordered him to ADT for  
3 days on 5 May 1995

8.  His record contains Orders Number 079-030, issued by the Headquarters, 91st Division (Exercise), dated 2 February 1995, which revoked Order Number 062-032, dated 5 January 1995.  
9.  A memorandum from the U.S. Total Army Personnel Command (now known as HRC, St. Louis, MO), dated 6 June 1997, Subject:  Notification of Promotion Status, stated the applicant was considered for promotion to major, but he was not selected for promotion.  This constituted his first pass-over for promotion.  This memorandum further stated one of the many possible reasons for non-selection was that he had not completed his civilian and military educational requirements.

10.  He submitted a letter from the Chief, Transition and Separations, HRC, St. Louis, MO, dated 20 January 2011.  This letter stated an audit of his file determined that he completed 19 years, 11 months, and 7 days of qualifying service and as a result, he was not eligible to receive retirement pay.

11.  His record contains an ARPC Form 249-E (Chronological Statement of Retirement Points) generated from the HRC Integrated Web Services (IWS) database on 9 November 2011 that shows: 

   a.  between June 1984 and June 1986 (the years he was enrolled in the Transportation Course) he earned 61 inactive duty points, 37 extension course points, 45 membership points, and 6 AD points;

   b.  the years between June 1984 and June 1986 were qualifying years;
   
   c.  between June 1994 and June 1995 he earned 38 inactive duty points, 
15 membership points, and 8 AD points for a total 61 points and a qualifying year; 
   
   d.  between May 1995 and February 1999 he only earned membership points; and 

   e.  he completed 16 years of qualifying service for a nonregular retirement at the time of discharge from the USAR.  

12.  His transaction history generated from HRC's IWS database, on 9 November 2011, shows on:

   a.  7 December 2010, he submitted a DD Form 108 Application for Retired Pay Benefits) and DD Form 2656 (Data for Payment of Retired Personnel) packet; 
   
	b.  10 December 2010, his DD Form 108 was received;


	c.  3 January 2001, he was informed that he only had 14 qualifying years of service for retirement.  He claimed he had additional AD and Individual Ready Reserve time that was not counted.  He was instructed to provide copies of his leave and earning statements from 1974 to 1981, due to those missing periods on his points statement.  

	d.  20 January 2011, he had only 14 of the 20 qualifying years required to receive retirement pay at age 60.  He did not receive a 15 or 20-year letter and he was informed by HRC, St. Louis that he was denied retirement at age 60; and 

	e.  26 January 2011, the retirement points accounting system was updated to include his AUS time and he now has 16 years of qualifying service for retirement.

13.  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.  

14.  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 a Reserve Component (RC) Soldier.  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, 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  His record is void of any evidence and he has not provided any evidence that shows he had  any additional active duty service from June 1994 to June 1995  that was not previously accounted for in the 8 active duty points depicted on his ARPC Form 249-E.


3.  Notwithstanding the letter the applicant submitted from HRC, dated 
20 January 2011, HRC's IWS transaction history and his ARPC 249-E show that as of his retirement year his record was corrected to show he was credited with only 16 years of qualifying service for retirement.  

4.  The evidence of record shows between June 1995 and March 1998 he only earned 15 membership points per year.  He has provided no evidence to substantiate his contention that he earned at least 50 membership points per year between June 1995 and February 1999 or that he earned at least 20 years of qualifying service for retirement.  

5.  To be eligible for retired pay based on non-regular service, an individual must have attained the age of 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of his or her qualifying service as an RC Soldier.  A qualifying year is defined as a year of service during which a Reservist earns at least 50 retirement points.  He had not completed 20 years of qualifying service.  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)                                         AR20110004037



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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