IN THE CASE OF:	  

		BOARD DATE:	  12 April 2012

		DOCKET NUMBER:  AR20110012282 


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, recalculation of his active duty service, that he be provided Notification of Eligibility for Retired Pay at Age 60 (a 20-year letter), and restoration of his rank to pay grade E-6.  He also requests correction of his military occupational specialty (MOS).

2.  The applicant states he should have been placed in the Retired Reserve in pay grade E-6, the highest grade he satisfactorily held.  The Department of Veterans Affairs (VA) and the Disabled American Veterans told him he should wait until age 62 to clear up these issues. 

3.  The applicant provides copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty) for active duty periods ending 2 July 1971, 20 June 1978, and 16 September 1990; U.S. Army Reserve (USAR) discharge orders, dated 27 June 1975; a 1990 military identification card; a 16 September 1990 leave and earnings statement; a May 1971 college diploma; several course completion certificates; and assignment and separation orders all showing his rank as a staff sergeant (E-6).

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 records show he was inducted on 3 July 1969 at the approximate age of 20 years and 10 months and of age, and served in the:

* Army of the United States from 3 July 1969 to 2 July 1971 – a net of
02 years, 00 months, and 00 days 
* U.S. Army Reserve from 3 July 1971 to 2 July 1975
* Break in service from 3 July 1975 to 29 April 1976
* Regular Army from 30 April 1976 to 20 June 1978 – a net of 02 years, 
01 month, and 21 days
* Regular Army from 21 June 1978 to 16 September 1990 – a net of 12 years, 02 months, and 26 days
* his total active service equals 16 years, 04 months, and 18 days 

3.  A DARP Form 249-3 (Chronological Record of Military Service), dated 2 June 1995, shows the applicant had only one qualifying year in the USAR – between 3 July 1973 to 2 July 1974; he earned 68 points.

4.  A letter from the U.S. Army Reserve Personnel Center, dated 8 June 1995, informed the applicant that he did not have enough years to qualify for retirement at age 60.  It also stated he needed the last 8 years of "qualifying" service to have been served in a Reserve Component.

5.  The applicant's DD Form 214 ending on 2 July 1971 shows he served in MOS 11B (Light Weapons Infantryman).  The DD Form 214 ending on 20 June 1978 shows he served in MOS 16P (Chaparral Crewmember) and the DD Form 214 ending on 16 September 1990 shows he served in MOS 16S (MANPADS Crewmember) and as a Chaparral Crewmember.

6.  Title 10, U.S. Code, sections 12731 through 12739, authorizes retired pay for Reserve Component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.  The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year, and which count as qualifying years of service for retirement benefits at age 60.

7.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), indicates, in pertinent part, 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 a Reserve Component Soldier.  The requirement to serve the last 8 years in a Reserve Component was later amended to the last 6 years and currently there is no minimum requirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is requesting transfer to the Retired List and payment at the highest grade he held on active duty.  

2.  The applicant has neither the requisite number of qualifying years for pay at age 60, nor does he have the final 8 qualifying years in a Reserve Component.

3.  He was notified of these facts in 1995.  Given his date of birth (6 July 1948) he would have been just under age 46.  He was young enough to have corrected the situation.  

4.  The applicant has not completed sufficient service for the issuance of a
20-year letter; therefore, there is no basis for discussing the highest pay grade that he held.

5.  The applicant submitted three DD Forms 214 listing several different MOSs and he contends the MOSs should be corrected, yet he gave no indication as to what he thought was wrong or how he thought they should be corrected.  It is not possible to make a decision on the MOS issue.

6.  In view of the foregoing there is no basis for granting the applicant's requested relief.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.



      _______ _   _______   ___
               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)                                         AR20110012282



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110012282



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1