IN THE CASE OF:  

		BOARD DATE:  21 August 2012

		DOCKET NUMBER:  AR20110025229 


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, a transfer to the Retired Reserve and entitlement to retired pay at age 60.

2.  The applicant states she is one credit short of having a good year for 1993.  In 1993 she had to leave to care for her husband and their children after he became ill with cancer.  She contends she was told that coming in on Thursday night before drills would give her retirement points.  She was the Mess Hall clerk and was there every Thursday before drill and went early on all away drills.  One additional credit would allow her to apply for retirement on time.  Her husband recently passed away and she and her father have been working to resolve this issue.

3.  The applicant provides three letters of support.

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 21 March 1955.  Having prior enlisted service in the U.S. Air Force she enlisted in the U.S. Army Reserve (USAR) on 22 October 1977.

3.  She was honorably discharged from the USAR on 30 June 1997.  Her ARPC Form 249-E (Chronological Statement of Retirement Points) shows she completed 19 years of qualifying service toward nonregular retirement.  This statement also shows a breakdown of her total career points by retirement year ending (RYE) date.  It shows she earned 49 retirement points during RYE 21 October 1993.

4.  She provides three letters of support that summarily state she attended Thursday night meetings prior to drill weekends and volunteered to be on the advanced party for range fire.  The applicant was absent from a 2-week active duty training event due to her husband's illness.

5.  Title 10, U.S. Code, sections 12731 through 12740, authorize retired pay for Reserve component military service.  Under this law, a Reserve Component (RC) Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.

6.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 relates to the removal of Soldiers from an active status and states that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.	

7.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, states 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 an RC Soldier.  During the period October 1991 to December 2001, the requirement to serve the last 8 years in an RC was amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero (0) years.  This regulation also specifies that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.

8.  Paragraph 2-8 of the same regulation describes qualifying service as service performed in an active status in an RC or in active federal service.  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.  When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, a transfer to the Retired Reserve and entitlement to retired pay at age 60.

2.  She contends she was told she would receive retirement points for attending meetings on the Thursday before scheduled weekend drills.  She provided letters of support that confirm she attended the meetings and participated in additional training; however, there is no official record of this time.

3.  Evidence of record shows that during RYE 21 October 1993 she earned
49 retirement points.  Regulatory guidance states a reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service for retirement.  However, during RYE 21 October 1992 she earned 54 retirement points exceeding the minimum 50 points requirement for a qualifying year.

4.  It is reasonable to presume that a Soldier with 19 qualifying years toward a 20-year retirement would not knowingly forfeit a qualifying year if he/she was aware of the situation.  Therefore, in the interest of equity and justice, it would be appropriate to redistribute necessary retirement points to RYE 
21 October 1993 to make it a qualifying year thereby entitling the applicant to
20-year retirement benefits at age 60.

5.  In view of the foregoing, the applicant's record should be corrected as recommended below.






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:

	a.  redistributing one point to RYE 21 October 1993, making this RYE a qualifying year for retirement;

	b.  showing she completed 20 years of qualifying service for nonregular retirement with at least the last 6 years served in the USAR; and

	c.  issuing her a 20-year letter.



      __________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)                                         AR20110025229



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ABCMR Record of Proceedings (cont)                                         AR20110025229



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