BOARD DATE:	  6 October 2011

		DOCKET NUMBER:  AR20110008060 


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 his record be corrected to reflect 20 years of qualifying service for retirement and eligibility for non-regular Reserve retirement.  

2.  The applicant states his last NGB Form 22 (National Guard Bureau (NGB) Report of Separation and Record of Service) shows he completed 22 years of service.  

3.  The applicant provides his last NGB Form 22 in support of his application.  

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 record shows he served in the Army National Guard (ARNG) from 9 December 1971 through 1 January 1993, at which time he received a general discharge and was transferred to the U.S. Army Reserve (USAR).  He served in the USAR from 2 January 1993 through 14 January 1997, at which time he was honorably discharged.  On 16 March 2005, he again enlisted in the ARNG and served until 15 March 2007, at which time he was honorably discharged at the expiration of his term of service.  The NGB Form 22 issued to him at the time shows he completed 20 years, 1 month, and 24 days of service for pay purposes.  

3.  The record contains an NGB Form 22B (Army National Guard Retirement Points History Statement) completed on the applicant on 7 December 2006 that shows he earned a total of 13 years, 10 months, and 22 days of creditable military service for retirement purposes during his ARNG service between 
9 December 1971 and 15 March 2007.  It also contains an AHRC Form 249-2-E (Chronological Statement of Retirement Points) that shows that during his USAR service during the period between 11 August 1992 and 14 January 1997, he earned an additional 1 year of qualifying service for retirement purposes.

4.  During the processing of this case, an advisory opinion was obtained from the NGB Acting Chief, Personnel Policy Division.  This official recommends disapproval of the applicant’s request.  The opinion indicates a review of the applicant’s retirement point statements from the ARNG and USAR confirmed the applicant failed to complete 20 years of qualifying service for retirement purposes.  It further indicates that although at the time of the applicant’s discharge from the ARNG in 2007 he had 20 years of service for pay purposes, he only had 14 years, 10 months, and 22 days of creditable service for retired pay.  

5.  On 7 July 2011, the applicant was provided a copy of the NGB advisory opinion in order to have the opportunity to respond.  To date, he has failed to reply.  

6.  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.

7.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength) prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers.  In pertinent part, it provides that an annual Statement of Retirement Points will be prepared for all Soldiers regardless of the number of points awarded.  The purpose of the statement is to give a permanent record of the total retirement points a Soldier earns during a retirement year; to tell the Soldier whether he/she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status; and to give the Soldier an opportunity to request correction of errors in the statement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be credited with 20 years of qualifying service for retirement has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  By law and regulation, in order to be eligible for non-regular Reserve retirement and retired pay at age 60, a member must complete a minimum of 
20 years of qualifying service and that qualifying service is granted only for each year of service an individual earns 50 or more retirement points.  

3.  The evidence of record contains an NGB Form 22B and an AHRC Form 249-2-E-that confirm between his initial entry into military service on 9 December 1971 and his honorable discharge from the ARNG on 15 March 2007, the applicant completed only 14 years, 10 months, and 22 days of qualifying service for non-regular retirement.

4.  The applicant, as an active member of the Reserve Component, should have been receiving annual retirement points statements and could have raised any questions concerning his points/qualifying years of service at any time.  Absent any evidence of the applicant completing the additional 5 years, 1 month, and 8 days of qualifying service necessary to qualify for non-regular Reserve retirement, there is an insufficient evidentiary basis to support granting the requested relief. 








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)                                         AR20110008060



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ABCMR Record of Proceedings (cont)                                         AR20110008060



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