BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110008314 


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 a 20-year retirement at age 60.

2.  He states:

* had his records shown he had 19 years of service versus 17 years, he feels a different course of action would have been be taken
* he was denied his rights of involuntarily separation under U.S. Code Title 10 based upon –

* his receipt of mental health counseling from 1987 to 1990
* being told "things were not working out" when he was reassignment to the U.S. Army Reserve (USAR) (Reinforcement) 
* while he was unaware of his substandard performance he did not receive any warnings and documents, either verbal or written

3.  The applicant provides:

* ARPC Form 249-E (Chronological Statement of Retirement Points)
* self-authored statement
* character reference letter
* 16 pages of mental health counseling notes


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 20 September 1947.  He enlisted in the Army National Guard on 14 December 1964 and served until 12 December 1966.  On 14 December 1966, he enlisted in the U.S. Army Reserve (USAR) and served until he was discharged on 13 December 1970.  On 28 June 1974, he was commissioned as a 2nd lieutenant in the USAR.  He was promoted to 1st lieutenant on 27 June 1977, to captain on 3 November 1980, and to major on 14 January 1985.  He continued to serve in the USAR on follow-on assignments.

3.  He submitted 15 pages of counseling sessions from the Parker Nicollet Medical Center, Mental Health Department, dating from 14 August 1989 through 
1 February 1990, which state he was treated for adjustment reaction-personality disorder based on his feelings of grief and self-esteem relating to his divorce.

4.  A memorandum from the U.S. Total Army Personnel Command (now known as Human Resources Command (HRC), St. Louis, dated 15 August 1991, Subject:  Notification of Promotion Status, stated that he was considered, but not selected for promotion to lieutenant colonel.  This constituted his first passover for promotion.  This memorandum further stated that one of the many possible reasons for his non-selection was that he had not completed his military educational requirements.

5.  A memorandum from HRC, St. Louis, dated 3 August 1992, Subject:  Notification of Promotion Status, stated that he was considered, but not selected for promotion to the next higher grade and as a result was being separated from the USAR.


6.  Orders D-09-856118, issued by the U.S. Army Reserve Personnel Command, St. Louis, dated 1 September 1998, honorably discharged the applicant from the USAR, effective 1 September 1998 under the provision of Army Regulation 
135-175 (Separation of Officers).

7.  In the processing of this case, on 14 December 2009, an advisory opinion was obtained from the Chief, Transition and Separations, HRC, St. Louis.  The advisory official stated a review of the applicant's file determined that he completed 19 qualifying years of service and as a result, was not eligible for favorable consideration for issue of a notice of eligibility for retirement at age 60.

8.  His ARPC Form 249-E (Chronological Statement of Retirement Points) generated from the Human Resources Command (HRC) Integrated Web Services (IWS) database, on 9 November 2011, shows he completed 19 years qualifying service for non-regular service retirement.  The statement shows the total retirement points and component for the retirement year ending (RYE) as:

* RYE 8 March 1989 - USAR - 16 points
* RYE 13 December 1987 - USAR - 88 points

9.  He submitted a character reference letter, dated 26 May 2010, requesting that he be authorized retired pay benefits as the result of 20 years of service.

10.  His record is void of any evidence and he has not provided any evidence showing he served any service that was not previously accounted for in the service computation depicted on his ARPC Form 249.

11.  Title 10, U.S. Code, sections 12731-12737 (Retired Pay for Non-Regular Service) authorized 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.  

12.  Title 10, U.S. Code 12646b (Commissioned Officers:  Retention after completing 18 years or more, but less than 20 years of service) states that on the date prescribed for the discharge or transfer from an active status of a reserve commissioned officer he is entitled to be credited with at least 19, but less than 20, years of service computed under section 12732 of this title, he may not be discharged or transferred from an active status under chapter 573, 1407, or 1409 of this title or chapter 21 of title 14, without his consent before the earlier of the following dates:

   a.  the date on which he is entitled to be credited with 20 years of service computed under section 12732 of this title; or

   b.  the second anniversary of the date on which he would otherwise be discharged or transferred from an active status.

13.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Non-regular 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 an 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.

14.  Army Regulation 135-155 also prescribes that a major on the Reserve Active Status List (RASL) who has failed in selection for promotion to lieutenant colonel for the second time and whose name is not on a list of officers recommended for promotion to lieutenant colonel, will be separated unless the officer has a remaining service obligation or can be credited with 18 or more but less than 20 years of qualifying service for retired pay.  Separation will be on the later of the first day of the month after the month in which the officer completes 20 years of commissioned service, or the first day of the seventh month after the approval date of the promotion board report that non-selected the officer for the second time.

DISCUSSION AND CONCLUSIONS:

1.  It is reasonable to presume that a Soldier with over 19 qualifying years toward a 20-year retirement would not knowingly forfeit a qualifying year if he/she was aware of the situation.  Therefore, it appears that the applicant was not properly advised of the requirements to be eligible for retired pay at age 60.

2.  Evidence of record shows that during RYE 8 March 1989 the applicant earned 16 creditable retirement points, 34 point short of earning the minimum 50 points necessary to be credited with a qualifying year.  However, during RYE 
13 December 1987 he earned 88 creditable retirement points exceeding the minimum 34 points requirement for a qualifying year.  Therefore, in the interest of equity and justice, it would be appropriate to redistribute the necessary creditable retirement points to RYE 8 March 1989 to make it a qualifying year thereby entitling the applicant to retirement benefits at age 60.
3.  The evidence of record shows the applicant attained the age of 60 on
20 September 2007.  As a result of the above record correction, he was entitled to begin receiving retired pay effective on that date.  Therefore, it would be appropriate to correct his record to show that he was officially and timely notified of his eligibility for retired pay at age 60.

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 for information on the SBP and on TRICARE.  A listing of RSOs by country, state, and installation is available on the Internet at: http://www.armyg1.army.mil/RSO/rso.asp

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 creditable retirement points to RYE 8 March 1989 to make it a qualifying year for retirement and showing he completed 20 qualifying years for retirement and was eligible to apply for retired pay at age 60;

	b.  showing that he timely applied for retired pay to be effective 21 September 2007 and it was received and processed by the Defense Finance and Accounting Service in a timely manner; and


	c.  paying the applicant all due retired pay retroactive to the date he turned 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)                                         AR20110008314



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1