IN THE CASE OF:	  

		BOARD DATE:	    1 December 2011

		DOCKET NUMBER:  AR20110011256 


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 record to show he entered active duty in 1976.

2.  He states, in effect, his record does not show he enlisted in the Army in 1976.  He also states he needs retirement from the National Guard based on 20 years of service.

3.  He provides two DD Forms 214 (Certificate of Release or Discharge from Active Duty).

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 enlisted in the Army National Guard (ARNG) on 21 March 1976.  A DD Form 214 in his record shows he entered active duty for initial entry training on 23 May 1976, and he was honorably released from active duty on 9 September 1976 after completing 3 months and 17 days of total active service.  

3.  Orders 157-120, issued by Headquarters, Fifth United States Army, Fort Sam Houston, TX, dated 13 August 1979, ordered him to active duty for a period of 18 months and 14 days as a Reserve of the Army.  He enlisted in the Regular Army on 23 March 1981.

4.  A second DD Form 214 in his record shows he entered active duty on 1 October 1979, and he was honorably discharged from the Regular Army (RA) on 16 April 1984.  He completed 4 years, 6 months, and 16 days of net active service during the period covered by this DD Form 214.  Item 12d (Total Prior Active Service) of this form shows 3 months and 17 days, and item 12e (Total Prior Inactive Service) shows 3 years, 2 months, and 23 days.  

5.  On 9 March 1992, he enlisted in the ARNG for a period of 3 years.  He extended this enlistment on three occasions, incurring an obligation to serve through 8 September 2004.

6.  An Army National Guard Current Annual Statement, prepared on 2 December 1999, shows he had a break in military service from 17 April 1984 to 8 March 1992.  The document shows he had completed 11 years and 26 days of service creditable for retired pay.  

7.  Orders 080-008, issued by the State of New Jersey, Department of Military and Veterans Affairs, Trenton, NJ, dated 21 March 2001, discharged him from the ARNG and as a reserve of the Army effective 19 September 2000.

8.  A DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows he enlisted in the U.S. Army Reserve (USAR) for a period of 4 years on 20 September 2000.

9.  Orders 02-268-00001, issued by Headquarters, 100th Division (Institutional Training), Louisville, KY, dated 25 September 2002, discharged him from the USAR effective 15 August 2002.   

10.  Title 10, U.S. Code, section 12731 provides an entitlement to certain members of the Reserve Component to retired pay and benefits at age 60.  In order to receive retired pay and benefits at age 60, Soldiers must, among other requirements, have performed at least 20 years of qualifying service computed under Title 10, U.S. Code, section 12732.
11.  Paragraph 2-3 of Army Regulation 135-180 (Qualifying Service for Retired Pay - Nonregular Service) provides, in pertinent part, that a 20-Year Letter will be issued to Reserve Component Soldiers within 1 year after they complete 20 years of qualifying service for retirement.  The letter, once issued, may not be withdrawn or revoked.  Additionally, this regulation provides 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) at the time, served the last    8 years of his or her qualifying service as a Reserve Component Soldier.  

12.  Paragraph 2-9b of Army Regulation 135-180 states after 30 June 1949, a Reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  Only Soldiers assigned to an active status in a Reserve Component or individuals in active Federal service are authorized to earn retirement point credits.  When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows no errors were made in documenting his active duty service in 1976.  He was issued a DD Form 214 for the period in question, and the form accurately documents his first period of active duty service.  Further, the active and inactive service he completed prior to his entry on active duty in 1979 is shown on his DD Form 214 for the period ending 16 April 1984.  In the absence of evidence showing error in documenting his active duty service in 1976, there is no basis for granting the relief he requests.  

2.  It appears he believes he is eligible for retired pay based on his years of service.  

	a.  The ARNG Current Annual Statement in his record shows he completed 11 years and 26 days of service qualifying for retired pay during the period 21 March 1976 to 9 March 1999.  

	b.  To become eligible for retired pay, after 9 March 1999 he would have had to complete an additional 8 years, 11 months, and 4 days of qualifying service.  He did not do so.  Therefore, he is not eligible for retired pay.  




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)                                         AR20110011256





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ABCMR Record of Proceedings (cont)                                         AR20110011256



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