IN THE CASE OF:	  

		BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110009301 


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, transfer to the Retired Reserve and receipt of a Notification of Eligibility for Retired Pay at Age 60 letter (known as the
20-year letter).

2.  He states he would like to receive a 20-year letter.  His unit administrator stated that his expiration of term of service (ETS) date was good and he would receive a 20-year letter in 6 months.  To him this was an honest mistake.  By the time he checked for his letter the fiscal year was over.  If his request is denied he would like some information on how the complete the last year.

3.  He provides:

* an Army Reserve Personnel Center (ARPC) Form 249-E (Chronological Statement of Retirement Points), dated 27 December 2010
* a letter from a Member of Congress, dated 6 January 2011

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 initially enlisted in the U.S. Army Reserve (USAR) on 5 August 1985.  He reenlisted in the USAR on 25 April 1993 and again on 25 April 1999 for a period of 6 years.

3.  The Soldier Management System (SMS), located on the U.S. Army Human Resource Command-St. Louis Integrated Web Service, Major Personnel Actions Section, shows he was involuntarily discharged from the USAR on 12 July 2005 for expiration of his USAR service obligation.  His discharge orders are not available for review with this case.

4.  ARPC Forms 249-E, dated 27 December 2010 and 28 November 2001, show he was credited with 19 years, 11 months, and 8 days of qualifying years for retirement.

5.  On 27 December 2010, the U.S. Army Reserve Personnel Center responded to a Member of Congress on behalf of the applicant.  In their response, the command stated:

	a.  in order for the applicant to be eligible for retired pay at age 60, a Reserve Solider must have completed a minimum of 20 qualifying years of service, the last 8 years of which must have been in a Reserve component, and 50 retirement points per year for that service to be creditable for retirement; and

   b.  to be eligible for a 20-year letter, a Soldier must complete 20 qualifying years.  An audit of the applicant's military records shows he completed 19 years, 11 months, and 8 days of qualifying service for retirement as shown on his ARPC Form 249-E.  Accordingly, the applicant was not eligible to receive a 20-year letter.

6.  He will reach age 60 on 12 July 2019.

7.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), 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/her qualifying service as a Reserve Component Soldier.  The requirement to serve the last 8 years in a Reserve Component has since been amended to the last 6 years and currently 0 years.

8.  Army Regulation 135-180, paragraph 2-3, states a 20-year letter will be issued to the Reserve Component Soldier within 1 year after they complete 20 years of qualifying service for retirement.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant initially enlisted in the USAR on 5 August 1985.  His last reenlistment on 25 April 1999 was for 6 years with an ETS date of 24 April 2005.  The SMS shows he was involuntarily discharged from the USAR on 12 July 2005.  He was issued two ARPC Forms 249-E crediting him with 19 years, 11 months, and 8 days of qualifying years of service.

2.  It appears he was held beyond his ETS to complete 20 years of qualifying service for retirement; however, he was discharged almost 30 days short of reaching 20 years.  It also appears the USAR was not aware that he had not completed 20 years of qualifying service for retirement as of 12 July 2005.  There is also no evidence to show his discharge was based on misconduct or adverse action.

3.  Therefore, as a matter equity, his records should be corrected to show he was discharged from the USAR effective 4 August 2005 at the completion of 20 years of qualifying service for retirement and issuance of a 20-year letter.

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.  Preparing an appropriate document to in effect revoke the orders that discharged him from the USAR effective 12 July 2005 (not available in this case);

	b.  Extending him in the USAR through 4 August 2005 for the convenience of the Government;

	c.  Issuing him new orders honorably discharging him from the USAR effective 4 August 2005;

	d.  Correcting his ARPC Form 249-E to show he completed 20 years of qualifying service for retirement; and

	e.  Issuing him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), as a result of these corrections.



      ____________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)                                         AR20110009301



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110009301



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1