IN THE CASE OF:	  

		BOARD DATE:	  15 May 2012

		DOCKET NUMBER:  AR20110022085 


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 that he retired in the rank of major (MAJ)/pay grade O-4 with all related pay and benefits.

2.  The applicant states he:

* had prior honorable enlisted service in the U.S. Navy from 1968 to 1974
* was appointed as a Reserve commissioned officer on 4 June 1978
* completed 20 years of commissioned service on 4 June 1998
* had a mandatory release date (MRD) of 4 June 2002
* was honorably discharged on 31 May 2005

	a.  He states that Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides that a MAJ on the Reserve Active Status List who has failed selection for promotion to lieutenant colonel (LTC) (twice) and whose name is not on a list of officers recommended for promotion to LTC will be separated on the first day of the month after the month in which the officer completes 20 years of commissioned service.  He adds that he neither declined, nor failed to accept promotion to LTC.

	b.  On multiple occasions while in an Individual Mobilization Augmentee (IMA) status he requested transfer to a Troop Program Unit (TPU) and annual IMA training.  However, there were no TPU or IMA training units available until his transfer to the 396th Combat Support Hospital.

	c.  On 7 March 2005, while assigned to the 396th Combat Support Hospital, the unit administrator requested that his retirement points and MRD be corrected.  However, no action was taken to correct his records.

	d.  He adds his previous requests to the Army Review Boards Agency were returned on 27 December 2010, 18 January 2011, and 24 August  2011 based on administrative matters.

3.  The applicant provides no additional documentary evidence in support of his request.

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 was born on 24 May 1950.

3.  The applicant had prior honorable enlisted service in the U.S. Navy from
22 July 1968 through 21 July 1974.

4.  He was appointed as a commissioned officer in the U.S. Army Reserve (USAR) on 4 June 1978.

5.  He was promoted to MAJ with a date of eligibility of 4 June 1992, effective 
4 September 1992.

6.  USAR Personnel Command, St. Louis, Missouri, Orders D-10-868731, dated 21 October 1998, honorably discharged the applicant from the USAR effective
21 October 1998.


7.  ABCMR, Record of Proceedings, Docket Number AR2001058886, dated
26 February 2002, shows the applicant requested reinstatement in the Ready Reserve because the USAR Personnel Command did not use his correct address when notifying him via official correspondence.

	a.  The Record of Proceedings show that "information provided by the Office of Promotions, Reserve Components, revealed that the applicant had been considered for promotion to LTC prior to separation; however, his name (was) administratively removed from that list since he was separated prior to the approval of the list."

	b.  To provide the applicant a fair opportunity to demonstrate promotion potential, the Board recommended correction of his records by:

* revoking his discharge of 21 October 1998
* transferring him to the Standby Inactive List effective 4 June 1995
* transferring him to the USAR Control Group (Reinforcement) effective
26 February 2002

8.  USAR Personnel Command, St. Louis, Missouri, Orders D-10-868731R, dated 28 March 2002, voided USAR Personnel Command, St. Louis, Missouri, Orders D-10-868731, dated 21 October 1998.

9.  USAR Personnel Command, St. Louis, Missouri, Orders C-04-209288, dated 2 April 2002, released the applicant from the USAR Control Group (Reinforcement) and assigned him to the Standby Reserve (Inactive List) effective 4 June 1995.

10.  USAR Personnel Command, St. Louis, Missouri, Orders C-05-213133, dated 13 May 2002, released the applicant from the Standby Reserve (Inactive List) and assigned him to the USAR Control Group (Reinforcement) effective
13 March 2002.

11.  U.S. Army Human Resources Command, St. Louis, Missouri, Orders
D-02-504942, dated 10 February 2005, honorably discharged the applicant from the USAR under the provisions of Army Regulation 135-175 (Separation of Officers), in the rank of MAJ, effective 1 May 2005.

12.  The applicant's ARPC Form 249-E (Chronological Statement of Retirement Points) shows that, as of 1 May 2005, he had completed 16 years, 11 months, and 11 days of qualifying service for retirement.  It also shows his:


* enlisted service in the U.S. Navy from 22 July 1968 through 3 July 1974
* break in service from 4 July 1974 through 3 June 1978
* Reserve commissioned service from 4 June 1978 through 1 May 2005

13.  A review of the applicant's military personnel records failed to reveal:

   a.  He was selected for promotion to LTC subsequent to reinstatement in the USAR.

   b.  Selected for continuation or retained under law.

   c.  Issued a "Twenty Year Letter" notifying him of his eligibility for retired pay upon attaining age 60.

14.  Army Regulation 135-155, Chapter 4 (Processing Selection Board Recommendations) provides policy for selecting and promoting commissioned officers of both the Army National Guard of the United States (ARNGUS) and the USAR.

	a.  Paragraph 4-29 (General) provides that nonselection by a promotion board is administratively final.  If law requires removal from active status, the officer must be removed within the prescribed time limits.

	b.  Paragraph 4-30 (Mandatory Consideration Nonselection Policy) provides that an officer who twice fails to be selected for promotion to the grade of LTC will be removed from active status unless subsequently placed on a promotion list, selected for continuation, or retained under any other provision of law.

15.  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.

16.  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 Component 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.

17.  Army Regulation 135-175 provides policy, criteria, and procedures for the separation of officers of the ARNGUS and the USAR.  Chapter 4 (Discharge of Army Reserve Officers) describes conditions under which USAR officers may be discharged from their status as Reserves of the Army and prescribes criteria for discharging them.  Paragraph 4-4 provides that members of the Army Reserve will be removed from an active status for any of the reasons in subparagraphs
(1) through (18), which include nonselection for promotion after second consideration for promotion to LTC.  Removal will be with or without the officer's consent regardless of the length of commissioned service.  Removal will be by discharge, transfer to the Retired Reserve (if eligible and requested by the member) or, if eligible, transfer to control group (inactive).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he completed 20 years of qualifying service for retirement and that he retired in the rank of MAJ (O-4) with all related pay and benefits.

2.  The evidence of record reflects the applicant's enlisted service in the U.S. Navy and his service as a Reserve commissioned officer.  The evidence also shows his records were corrected in 2002 based on a request he made to the ABCMR.  Accordingly, he was reinstated in the USAR effective 4 June 1995.

3.  There is no evidence that the applicant was notified that his eligibility for retired pay had been established upon attaining age 60.

4.  The ARPC Form 249-E is a record of points earned from all sources in a retirement year.  It shows if a retirement year is creditable towards 20 years of qualifying service for retired pay.  The applicant should have been receiving these statements on an annual basis.  The applicant's ARPC Form 249-E shows he only completed 16 years, 11 months, and 11 days of qualifying service for retired pay at age 60 when he was honorably discharged from the USAR on
1 May 2005.  Therefore, the applicant did not complete a minimum of 20 years of qualifying service for retirement.
5.  In view of the foregoing, there is no basis to granting the applicant's requested relief.

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)                                         AR20110022085



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ABCMR Record of Proceedings (cont)                                         AR20110022085



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