IN THE CASE OF: 

		BOARD DATE: 6 October 2011

		DOCKET NUMBER:  AR20110006067
 

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 was transferred to the Retired Reserve and entitled to retired pay at age 60.

2.  The applicant states he applied for retirement and was told he is only being credited with 19 years, 11 months, and 20 days of qualifying service.  He was previously told by unit administrator personnel that he had sufficient points and service to qualify for retirement.  He believes he has been treated unjustly concerning this matter. 

3.  The applicant provides copies of:

* a letter from the U.S. Army Human Resources Command, St. Louis
(HRC-STL), MO, dated 21 May 2010
* his memorandum, dated 13 March 1997, requesting transfer
* Headquarters, U.S. Army Reserve Command (USARC) Orders reassigning him to the USAR Control Group (Reinforcement)
* his personal calendar from January – October 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's records show he was born on 24 March 1943.  He enlisted in the Regular Army (RA) on 5 August 1961 and held military occupational specialty (MOS) 112.20 (Heavy Weapons Infantryman).

3.  On 13 August 1964, he was honorably released from active duty and transferred to the USAR Control Group (Reinforcement) to complete his Reserve obligation.  He had completed 2 years, 11 months, and 19 days of creditable active service.

4.  He served in the USAR Control Group (Reinforcement) from 14 August 1964 to 24 August 1967, and in a USAR troop program unit from 12 June 1980 to      14 January 1998 until he was reassigned to the USAR Control Group (Reinforcement).

5.  On 13 March 1997, he forwarded a memorandum to the Commander, Headquarters, 87th Division, Birmingham, AL, stating that effective 1 June 1997 he was relocating from Orlando, FL to Dallas, TX.  He requested a transfer to another Command Sergeant Major (CSM) position.  He further stated he would continue in his current position as CSM of the 3d Battalion, 347th Regiment, 87th Division until he found a new position. 

6.  He provided a statement of facts:

	a.  On or about 19 June 1997, prior to his move to Dallas, TX, he met with the unit administrator for Headquarters, 3d Battalion, 347th Regiment to review his records and 20-year letter.  He was advised that he would have sufficient points for retirement and that the unit administrator would ensure appropriate paperwork was forwarded. 

	b.  In July 1997, he contacted the 75th Division Headquarters in Houston, TX, He expressed his interest in a vacant CSM position there and he attended drills with the unit in Waco and Houston from 19 July through October 1997.



	c.  On 20 January 1998, he contacted Master Sergeant (MSG) D____, 
87th Division Headquarters, in reference to orders he received directing involuntary transfer to the USAR Control Group (Reinforcement) effective 
14 January 1998.  He requested an extension because he was being considered for the CSM position with the 75th Division in Houston, TX.  MSG D____ told him the order could not be changed because he had sufficient years/points for retirement.  

7.  U.S. Army Reserve Personnel Command (AR-PERSCOM), St Louis, MO, Orders D-01-102791, dated 16 January 2001, honorably discharged him from the USAR, in the rank of (CSM)/E-9, effective this date.  

8.  His ARPC Form 249-E shows he completed 19 years, 11 months, and 20 days of qualifying service towards nonregular retirement.  This statement also shows a breakdown of his total career points by retirement year end (RYE) date. It shows he earned 42 retirement points during RYE 11 June 1998.

9.  On 24 March 2003, he turned age 60.

10.  In a letter dated 21 May 2010, the Chief, Transitions and Separations Branch, HRC-STL, informed the applicant that an audit of his military records showed he had completed 19 years, 11 months, and 20 days of qualifying service for retirement.  Accordingly, he was not eligible to receive retired pay and his application for retired pay was being returned. 

11.  Title 10, U.S. Code, section 12731, provides for non-regular retired pay to persons who had attained 60 years of age, had completed 20 or more years of qualifying service, and from 5 October 1994 through 24 April 2005 had performed the last 6 qualifying years as a Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he should be transferred to the Retired Reserve and authorized retired pay at age 60.

2.  The evidence of record shows the applicant was discharged on 16 January 2001.  At the time of discharge, he had completed 19 years, 11 months, and 20 days of qualifying service for nonregular retirement.  

3.  The evidence also shows the applicant did not perform any duty from January 1998 – January 2001, because he had been informed on at least two occasions that he had sufficient years/points to qualify for retirement pay.

4.  It appears unjust to penalize a Soldier who has served his country honorably for over 19 years and 11 months.  It is believable that if he had not been told he had sufficient years/points for retirement he certainly would have taken action to complete the service he needed to obtain the 8 points required to make RYE 
11 June 1998 a qualifying year for retirement.  Therefore, it would be appropriate to redistribute a sufficient number of retirement points without changing the total amount of points.  This redistribution of points should show the applicant completed 20 years of qualifying service with the last 6 years served in a Reserve Component.

5.  The applicant should be transferred to the Retired Reserve effective 16 January 2001.  He should also be placed on the Retired List in his retired rank/grade of CSM/E-9, effective 24 March 2003, the date he turned 60, and restoration of all back pay and allowances due on this date.

6.  A Survivor Benefit Plan election must be made prior to the effective date of retirement or the Survivor Benefit Plan will, by law, default to automatic Survivor Benefit Plan spouse coverage (if married).  This correction of records may have an effect on the applicant's status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer for information and assistance immediately.  A listing of Retirement Services Officers by country, state, and installation is available on the Internet at website:  http://www.armyg1.army.mil/ rso/rso.asp.  The Retirement Services Officer 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 8 points to RYE 11 June 1998, making this RYE a qualifying year for retirement;
	b.  showing the applicant completed 20 years of qualifying service for nonregular retirement with at least the last 6 years served in the USAR;

	c.  revoking AR-PERSCOM Orders  D-01-102791, dated 16 January 2001, and issuing new orders transferring him to the Retired Reserve effective            16 January 2001;

	d.  showing he applied for retired pay to be effective on 24 March 2003 (on his 60th birthday) and that his application was processed in a timely manner; and

	e.  having the Defense Finance and Accounting Service audit his military pay account to determine the retired pay he is owed as a result of the above correction.



      _____________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)                                         AR20100006960



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ABCMR Record of Proceedings (cont)                                      AR20110006067



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