IN THE CASE OF:	  

		BOARD DATE:	  12 January 2012

		DOCKET NUMBER:  AR20110019640 


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, award of active duty (AD) retirement points from 25 February 1997 to 19 February 1999.   

2.  He states that in question are the retirement points for AD for the period in which he was erroneously transferred to the Retired Reserve (25 February 1997 to 19 February 1999).  He is working with the Annuity and Retirement Points Supervisor, Army Human Resources Command (HRC).

3.  He is enclosing a copy of Army Board for Correction of Military Records (ABCMR) Proceedings, dated 22 July 1998, which stated, “that they were credited with qualifying service for Reserve retirement for their respective retirement years, from the date of their now-voided discharges or transfers to the Retired Reserve to the dates they return to the active Reserve.” 

4.  His Chronological Statement of Retirement Points, dated 6 September 2011, shows he was awarded inactive duty (IDT) points for the retirement years ending 24 January 1998 and 24 January 1999.  No retirement points for active duty were awarded.

5.  The statement shows a total of 1,856 days in an active status during his first 28 years of service.  This is an average of 66+ days per year.  During his last 4 years of service ending on 24 January 1997 he spent 232 days in an active status.  This averages to 58 days per year.  The year ending 24 January 1997 shows 33 days in an active status.

6.  Therefore, there would be logic to award him 66, 58, or 33 points for each of the two years in question.  It would be reasonable to presume that if he had been retained in an active Reserve status some active duty would have been performed.

7.  The ABCMR Proceedings seem to state that he would be awarded retirement points but not pay as if he had never been erroneously transferred to the Retired Reserve.  To date only retirement points for IDT have been awarded.  His question is what was the intention of the ABCMR regarding retirement points for the AD that it would be reasonable to presume he would have performed during this period but for the erroneous transfer and how many points should be awarded?  As noted, there is rationale for 33, 58, or 66 points per year.

8.  He provides:

* Retired Reserve orders, dated 14 February 1997
* ABCMR Proceedings, dated 22 July 1998
* Promotion Status memorandum, dated 14 January 1999
* Troop Program Unit (TPU) assignment orders, dated 19 February 1999
* Brigade assignment memorandum, dated 11 March 1999
* Chronological Statement of Retirement Points, dated 6 September 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's military records show he was appointed in the USAR, as a second lieutenant, effective 25 January 1969.  He was promoted to major effective 23 January 1982.  

3.  He was considered and not selected for promotion to lieutenant colonel by the 1992, 1993, and 1994 mandatory Reserve Components Selection Boards.  

4.  He was transferred to the Retired Reserve effective 25 February 1997.

5.  He was subsequently considered and selected for promotion to lieutenant colonel under the 1994 criteria by a Special Selection Board (SSB) that adjourned on 21 April 1998.  

6.  On 22 July 1998, the ABCMR approved the board results and directed the following:

* Promoting him to lieutenant colonel on his date of eligibility
* Voiding his transfer to the Retired Reserve
* Crediting him with qualifying service for Reserve retirement for his respective retirement years from the date of his now-voided transfer to the Retired Reserve to the date of his return to the active Reserve
* placing an adequate explanation in his official personnel file to show the gap in his officer evaluation reports
* expunging all documents related to his now-voided nonselections and transfer from his official military records

7.  Orders 050-0001 were issued by Headquarters, 87th Division (Exercise) on 19 February 1999 revoking his retirement orders and assigning him to a TPU in a lieutenant colonel position.  He was subsequently promoted to lieutenant colonel.

8.  His Chronological Statement of Retirement, dated 6 September 2011, shows he earned an average of 48 points for inactive duty training, 57 points for AD points, and 15 membership points for the 3 retirement years ending (RYE) prior to his transfer to the Retired Reserve in 1997.

9.  His record shows he participated as a USAR unit member, with the exception of active duty training, since his appointment in 1969.  

10.  Promotion policy specifies that when an officer is selected for promotion after consideration by a SSB and the officer has been separated, his/her records are further corrected by voiding the discharge or transfer to the Retired Reserve, with no force or effect, and the officer is credited with qualifying service for Reserve retirement for his/her respective retirement years, from the date of his/her now-voided discharge or transfer to the Retired Reserve to the date of his/her return to the Ready Reserve.  The records are further corrected by placing an adequate explanation in his/her records to show that the gap in officer evaluation reports, from the date of his/her now-voided discharge or transfer to the Retired Reserve to the date of return to a Ready Reserve status, was not caused by any fault on their part, and to insure that the officer is not prejudiced thereby in the consideration of any future personnel actions; and, all documents related to his/her discharge or transfer be expunged from his records.

11.  Army Regulation 140-185 (Training and Retirement Points Credit and Unit Level Strength Accounting Record) provides the policy for retirement point credit. Paragraph 2-2 states retirement points may be earned by USAR Soldiers for active duty.  Personnel on active duty are awarded 1 point for each calendar day they serve in this category.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to AD points for the retirement years from 25 February 1997 to 19 February 1999 based on his erroneous training to the Retired Reserve has been noted.  

2.  Based on his SSB promotion selection, the voiding of his transfer to the Retired Reserve, and reinstatement in the Ready Reserve he was entitled to correction of retirement points from the date of his now-voided transfer to the Retired Reserve to his return to a Ready Reserve status.  

3.  As a result of his prior years of AD participation, it reasonable to conclude that as a USAR officer he would have completed the minimum of two weeks AD (annual training) per retirement year.  Unfortunately, it would be speculative to presume he would have been authorized more than his annual training.  Therefore, it would be fair and just to show he is entitled to 14 AD points for his RYE 24 January 1998 and 24 January 1999.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by crediting the applicant with 14 active duty points each for RYE 24 January 1998 and 24 January 1999 and paying him accordingly.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to crediting him with additional active duty points.



      _______ _   __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)                                         AR20110019640





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110019640



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1