IN THE CASE OF:	  

		BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20110011323 


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 completed 20 years of qualifying service for retirement and all related benefits. (He is now listed as deceased on the U.S. Army Human Resources Command (USAHRC), Integrated Web System (IWS) and will be referred to hereafter as the former service member (FSM)),

2.  The FSM stated he served his country faithfully for over 22 years in both the Regular Army and U.S. Army Reserve (USAR) from 1970 to 1995.  He fulfilled all of his required duties, including being deployed overseas.

	a.  In April 2010, he applied for benefits and he was told he was ineligible for an Army pension.  He was not aware that active reserve or inactive reserve service was a factor in determining his qualifying years of service and he asserted that he never served in an inactive status.

	b.  The FSM stated his wife was unable to work and he was totally disabled and critically ill.  He wanted to ensure that he and his family received benefits they are entitled to in the event something happens to him.

3.  The FSM provided:

* two discharge orders
* an ARPC Form 249-E (Chronological Statement of Retirements Points, dated 24 February 2011


* a letter from the Retired Pay Branch, USAHRC, Fort Knox, KY, dated
24 February 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 FSM was born on 28 December 1948.

3.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the FSM was inducted into the Army of the United States on 19 October 1970.  He was honorably released from active duty (REFRAD) on
12 May 1972 and he was transferred to the USAR Control Group (Annual Training) to complete his Reserve obligation.  He completed 1 year, 6 months, and 24 days of total active service this period.

4.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the FSM enlisted in the Army National Guard (ARNG) on
4 June 1975 and he was honorably discharged on 3 June 1977.  He completed
2 years of net service this period, but he earned fewer than 50 retirement points per year.

5.  The FSM had a break in service form 4 June 1977 through 29 July 1977.

6.  The FSM enlisted in the USAR on 30 July 1977 and he was promoted to staff sergeant (SSG)/E-6 on 1 February 1990.

7.  Orders D-12-508369, issued by the U.S. Army Reserve Personnel Center,
St. Louis, MO, dated 12 December 1995, honorably discharged the FSM from the USAR, effective 12 December 1995.

8.  The FSM's USAHRC, IWS record contains an ARPC Form 249-E that summarizes the FSM's record of military service from 19 October 1970 through 12 December 1995.  It shows:

	a.  he completed 13 years, 6 months, and 23 days of qualifying service for retirement;

	b.  his retirement years that are credited as qualifying service (i.e., two (2) from 19 October 1970 through 12 May 1972 and from 30 July 1982 through
29 July 1994);

	c.  from the retirement year beginning 13 May 1972 through the retirement year ending (RYE) 29 July 1982, he did not earn at least 50 retirement points per year to be creditable for retirement; and

	d.  from retirement year beginning 30 July 1994 through RYE 12 December 1995, he did not earn at least 50 retirement points to be creditable for retirement.

9.  In support of his request, the FSM provided a letter from the Chief, Retired Pay Branch, USAHRC, Fort Knox, showing the FSM was advised that:

	a.  since 1 July 1949, a Reserve Soldier must have earned at least
50 retirement points per year for that service to be creditable for retirement;

	b.  to be eligible for retired pay at age 60, a Reserve Soldier or former Reserve Soldier must have completed a minimum of 20 qualifying years of service, the last 8 years of which must have been in a Reserve component;

	c.  service in an inactive reserve status is not creditable for retirement purposes; and

	d.  an audit of his military record shows he completed 13 years, 6 months, and 23 days of qualifying service for retirement.

10.  Army Regulation 140-185 (Training and Retirement Points Credit 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 (Ready Reserve and Active Standby Reserve).  It provides that an annual Statement of Retired 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.

11.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of retired pay to Soldiers and former Reserve components Soldiers.  Chapter 2 provides in:

	a.  paragraph 2-1, that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last
8 years of his or her qualifying service as a Reserve Component Soldier; and

	b.  paragraph 2-8b, that 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.

DISCUSSION AND CONCLUSIONS:

1.  The FSM's contention that his record should be corrected to show he completed 20 years of qualifying service for retirement was carefully considered.

2.  The ARPC Form 249-E is a record of points earned from all sources in a retirement year.  It shows if that year is creditable towards 20 years of qualifying service for retired pay.  He should have been receiving these statements on an annual basis.  The FSM's ARPC Form 249-E shows he only completed 13 years, 6 months, and 23 days of qualifying service for retired pay at age 60.  Therefore, the FSM did not complete a minimum of 20 years of qualifying service for retirement.

3.  In view of the foregoing, there is no basis to granting the FSM's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wishes to express its sincere sympathies and condolences to the FSM's family and wants all concerned to know that this action in no way diminishes the sacrifices made by the FSM in service to our Nation.  His family and all Americans should be justifiably proud of his service in arms.



      _______ 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)                                         AR20110011323



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ABCMR Record of Proceedings (cont)                                         AR20110011323



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