IN THE CASE OF:
BOARD DATE: 17 May 2012
DOCKET NUMBER: AR20110019837
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 his military records be corrected to show his application for retired pay was approved.
2. The applicant states:
* he filed for retired pay in July 2010 but his request was denied based on section 12740 of Title 10, U.S. Code
* section 12740 states a person who is separated pursuant to a court-martial (adjudged after 10 February 1996) with a dismissal is not eligible for retired pay
* his court-martial was dated 31 March 1994, almost 2 years before the effective date of section 12740
* this error needs to be corrected
* both Reserve Components Personnel and Administration Center and the presiding judge indicated he would be eligible for retirement
3. The applicant provides:
* excerpt pertaining to Title 10, U.S. Code, section 12740
* General Court-Martial Order Number 3, dated 31 March 1994
* Notification of eligibility for retired pay at age 60
* U.S. Army Reserve Personnel Center Chronological Statement of Retirement Points
* Correspondence from a Member of Congress
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was born on 3 June 1948. Having prior enlisted and commissioned service in the Army National Guard, he was appointed a second lieutenant in the U.S. Army Reserve (USAR) on 17 August 1973. He was promoted to major effective 14 April 1989.
3. On 13 September 1990, he received his notification of eligibility for retired pay at age 60 (his 20-year letter).
4. On 2 September 1993, he was convicted by a general court-martial of attempting to wrongfully appropriate $3,000.00, wrongfully appropriating $2,100.00, forgery (two specifications), and conduct unbecoming an officer (three specifications). He was sentenced to pay a fine of $3,000.00 and to be dismissed from the service. On 31 March 1994, the convening authority approved the sentence.
5. He was dismissed from the USAR on 13 March 1995.
6. Section 12740 of Title 10, U.S. Code, states a person who is separated pursuant to sentence of a court-martial with a dishonorable discharge, a bad conduct discharge, or (in the case of an officer) a dismissal, is not eligible for retired pay. This section shall apply with respect to court-martial sentences adjudged after 10 February 1996.
7. Chapter 14 (Payment Restrictions), section 1403 (Loss of entitlement to retired pay), paragraph 140301F (Denial upon certain punitive discharges or dismissals), of the Department of Defense Financial Management Regulation, Volume 7B, states the non-Regular service retired pay entitlement of a member is denied when his or her court-martial sentence includes death or separation by dishonorable discharge, bad conduct discharge, or dismissal effective with court-martial sentences adjudged after 10 February 1996.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions were carefully considered and appear to have merit.
2. Evidence shows:
* the applicant received his 20-year letter in September 1990
* he was convicted by a general court-martial on 2 September 1993 and sentenced to a dismissal
* he was dismissed from the USAR on 13 March 1995 in the rank of major
3. He contends he applied for retired pay in July 2010 but his request was denied based on section 12740 of Title 10, U.S. Code.
4. The law states a person who is separated pursuant to sentence of a court-martial with a dismissal adjudged after 10 February 1996 is not eligible for retired pay. Therefore, it appears the applicant is entitled to retired pay since his court-martial was adjudged in September 1993.
5. A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married). If the applicant did not make a Reserve Component SBP election upon receiving his 20-year letter this correction of records may have an effect on his SBP status/coverage. The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately. A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp. The RSO can also assist with any TRICARE questions the applicant may have.
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 showing he applied for retired pay and that his application was processed in a timely manner to be effective 3 June 2008.
_______ _ 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) AR20110019837
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ABCMR Record of Proceedings (cont) AR20110019837
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