BOARD DATE:	  15 March 2012

		DOCKET NUMBER:  AR20110006472 


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 has 20 qualifying years for Reserve retirement at age 60.

2.  He states:

* his Army National Guard (ARNG) Current Annual Statement shows 19 years, 11 months, and 24 days of creditable service for retired pay
* he was medically discharged and received a 15-year letter, but believes he should be eligible for a 20-year retirement
* being only 6 days short of a 20-year career is the fault of his former unit, the Wisconsin ARNG (WIARNG), and the Department of the Army
* he requested continuation on active Reserve (COAR) status in order to complete the 6 days necessary to complete 20 years and thought he had done so
* he received no credit for 4 years, 11 months, and 24 days he spent faithfully serving his country

3.  He provides:

* ARNG Current Annual Statement
* Notification of Eligibility for Retired Pay at Age 60 memorandum from the WIARNG
* ARNG discharge orders



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 5 January 1964.  He enlisted in the Regular Army on 15 August 1984.  On 15 April 1992, he was honorably discharged from active duty by reason of the Voluntary Early Transition Program (Special Separation Benefits).  He completed 7 years, 8 months, and 1 day of total active service.  He enlisted in the U.S. Army Reserve (USAR) Control Group (Reinforcement) effective 16 April 1992.

3.  On 28 January 1993, he enlisted in the WIARNG.

4.  His record contains a memorandum for the WIARNG G-1-Enlisted from the WIARNG Health System Services, dated 3 November 2005, which states the physical evaluation board's (PEB) determination that the applicant is unfit for duty was forwarded to that office for disposition on 29 August 2005 and requests processing of a medical discharge with an effective date of 14 November 2005.

5.  WIARNG Orders 307-540, dated 3 November 2005, discharged him from the ARNG and assigned him to the U.S. Army Reserve Personnel Command (Retired) effective 14 November 2005.

6.  He submits a memorandum from the WIARNG, dated 14 November 2005, subject:  Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 
15-Year Letter), which states he completed at least 15 years of qualifying service but did not complete 20 years or more of qualifying service.

7.  The applicant's ARNG Retirement Points History Statement (RPAS) prepared on 16 November 2005 shows he earned a total of 3,796 career points for retired pay and 19 years, 11 months, and 24 days of qualifying service for non-Regular retirement at the time of his discharge from the WIARNG.

8.  On 9 December 2011, the Chief, Personnel Policy Division, National Guard Bureau, Arlington, VA, rendered an advisory opinion which states:

	a.  The applicant indicated the WIARNG made an error when it did not allow him to work the number of days (6) required for his RPAS statement to reflect 20 years of creditable service versus the current length of service of 19 years, 11 months, and 24 days.

	b.  At the time of his medical discharge proceeding, he requested a COAR waiver from the PEB.  It was denied and he was discharged on 14 November 2005 and received a 15-year Notification of Eligibility for Retired Pay at Age 60 which qualifies him for retired pay when he reaches his 60th birthday or retired pay eligibility date.

	c.  National Guard Regulation 680-2 (Automated Retirement Points Accounting Management), section 2-5, states Soldiers must earn a minimum of 50 points from all sources in a retirement year to have that year creditable towards verification of 20 years of qualifying service for retired pay.  If the Soldier serves less than a full year, he must earn the minimum number of points indicated for that period to be creditable for retirement.  All retirement points awarded will be entered in the RPAS record whether the period is creditable or not.

	d.  A review of his RPAS by the National Guard Bureau's Retirement Services Section indicated he earned only 35 points during the time frame from 30 May 1992 to 29 May 1993 which was considered a non-qualifying year for retirement.  Amending the RPAS to make that year qualify for retirement would require reallocating retirement points earned in a good year to the non-qualifying year.  The Retirement Services Section indicated retired pay for non-Regular service is based on the total retirement points for retired pay reflected on the RPAS, not the number of years of service.  The reallocating of points to show the non-qualifying year as good would not change the total points and thereby would not affect the retired pay he is already entitled to receive.  Therefore, the requested adjustments were not necessary.

9.  On 19 December 2011, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides the policy and procedure for evaluation of the physical fitness of Soldiers who may be unfit to perform their military duties because of physical disabilities.  It states that a Soldier may not be retained or separated solely to increase retirement or separation benefits.

11.  Title 10, U.S. Code, sections 12731 through 12740, authorizes retired pay for Reserve Component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.

12.  Title 10, U.S. Code, section 12731b, provides a special rule for members with physical disabilities not incurred in the line of duty.  It states that 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 a physical disability, the Secretary concerned may determine to treat the member as having met the service requirement for the purpose of section 12731 of this title and provide the member notification required if the member completed at least 15 years but less than 20 years of qualifying service for retirement purposes.  This special provision of the law is applicable only to members who are medically disqualified for continued service in a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1.  The reallocation of points to show the non-qualifying year as qualifying would not change the total points and thereby would not affect the retired pay he is already entitled to receive.  Therefore, he is not entitled to have his record corrected to show he is eligible for a 20-year non-Regular retirement at age 60.

2.  The evidence of record also shows a PEB determined the applicant was unfit for duty and denied his request for COAR.  As a result, he was discharged and received a 15-year Notification of Eligibility for Retired Pay at Age 60 which qualifies him to apply for retired pay when he reaches his 60th birthday or retired pay eligibility date.

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)                                         AR20110006472



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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