IN THE CASE OF:	  

		BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110005439 


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 record to reflect 20 years of qualifying service for non-regular Reserve retirement.

2.  The applicant states he served for 20 years of continuous service and he earned 50 points in each of those years.  He further states his record was reviewed at least 20 times and each time personnel officials assured him he had 20 years of qualifying service for Reserve retirement purposes.

3.  The applicant provides the following documents in support of his application:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 24 April 1968
* Orders C-04-713708, issued by the U.S. Army Reserve Personnel Center, St. Louis, MO, dated 7 April 1997
* an ARPC Form 249-2-E (Chronological Statement of Retirement Points), dated 29 April 1997

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 10 April 1945.  He initially enlisted in the Regular Army (RA) on 29 July 1965.  He served in this status until he was honorably discharged for the purpose of accepting a commission on 30 June 1966.

3.  On 1 July 1966, the applicant was commissioned as a second lieutenant in the U.S. Army Reserve (USAR) with concurrent call to active duty. He continued to serve on active duty until he was honorably released from active duty (REFRAD) on 24 April 1968 and he reverted to the USAR Control Group (Reinforcement).  The DD Form 214 he was issued at the time shows he held the rank of first lieutenant, that he completed 2 years, 8 months, and 26 days of total active service, and that he completed 11 months and 2 days of other service.

4.  On 20 September 1978, the applicant was promoted to major and on 
19 September 1985, he was promoted to lieutenant colonel.

5.  The applicant was considered and not selected for promotion to colonel by the Reserve Component Selection Boards (RCSBs) held in 1989, 1990, 1991, and 1992.

6.  On 7 April 1997, the applicant was transferred to the Retired Reserve by reason of completion of the maximum authorized years of service.  He provided an ARPC Form 249-e, dated 29 April 1997, that shows he accrued 28 years of total service (qualifying and nonqualifying) for longevity pay purposes.

7.  An ARPC Form 249-E-2 on file in the applicant’s Official Military Personnel File (OMPF), dated 13 June 2011, shows he compiled 2,491 of creditable retirement points and that he completed 19 years, 11 months, and 2 days of qualifying service for retirement.

8.  The ARPC Form 249-E also shows that during the Retirement Year Ending (RYE) 30 June 1985, he accrued 85 retirement points, 35 more than the 


minimum 50 required for a qualifying year; and during RYE 30 June 1986, he accrued 15 retirement points, 35 less than the minimum required for a qualifying year.

9.  On 2 July 2010, the Supervisor, Retirement and Annuities, U.S. Army Human Resources Command, St. Louis, in a response to the applicant’s application for retirement benefits, notified the applicant his record showed he completed
19 years, 11 months, and 2 days of qualifying service for retirement and given he had not completed the 20 qualifying years necessary he was not eligible for retired pay.  He further advised the applicant to apply to this Board for relief.

10.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-regular Service) prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, U.S. Code, chapter 67, sections 1331 to 1337.  This regulation specifies, in pertinent part, that to be eligible for retired pay an individual must have attained age 60 and completed a minimum of 20 years of qualifying service and that subsequent to 1 July 1949, qualifying service is granted only for each year of service an individual earns 50 or more retirement points.

DISCUSSION AND CONCLUSIONS:

1.  The ARPC Form 248-E, dated 13 June 2011, shows that during the more  than 32 years of military service, the applicant was credited with only 19 years, 11 months, and 2 days of qualifying service for retirement at the time of his transfer to the Retired Reserve based on reaching his maximum authorized years of service.  It appears he may have been improperly counseled concerned his eligibility for a Reserve retirement.  However, it also shows he earned 2,491 retirement points during this period, which well exceeds the 1,200 point total he would have received had he earned only 50 retirement points required in each of these years.

2.  The record also shows that in many of the 19 years, 11 months, and 2 days of qualifying years with which the applicant was credited, he earned more than the minimum 50 points required to establish a qualifying year for retirement purposes.  However, in RYE 30 June 1986, he earned only 15 retirement points, which was 35 points short of the 50 points needed for a qualifying year.  Conversely, in RYE 30 June 1985 he earned 85 points, which was 35 points more than the minimum 50 points required for a qualifying retirement year.



3.  In view of the facts of this case, and given there is no evidence confirming the applicant was aware of his status, it would be appropriate and serve the interest of equity and justice to redistribute 35 points the applicant earned during RYE   30 June 1985 to RYE 30 June 1986.  This would result in the applicant being 
credited with 50 retirement points in both RYEs 30 June 1985 and 30 June 1986, which would provide him the one additional qualifying year for retirement purposes he needs to qualify for non-regular retired pay at age 60 as of 10 April 2005.

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.  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 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 35 of the 85 retirement points he earned during RYE 30 June 1985 to RYE 30 June 1986, thereby giving him the one additional year of qualifying service necessary for him to qualify for non-regular retirement pay at age 60, and

	b.  showing he applied for retired pay in a timely manner, to be effective April 2005; and 

	c.  paying him any back retired pay due from 10 April 2005, the date he reached 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)                                         AR20110005439



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ABCMR Record of Proceedings (cont)                                         AR20110005439



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