IN THE CASE OF:	  

		BOARD DATE:  13 November 2012

		DOCKET NUMBER:  AR20120001123 


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 his entitlement to retired pay and associated benefits at age 60.

2.  He states:

	a.  after graduating from college, he was commissioned in the Illinois Army National Guard (ILARNG) and as a result, was not well versed on personnel matters since he had limited access to Army regulations.

	b.  he reviewed his record and he was advised to take a photo for his 20-year board, and apprised not to worry about the board.  However, due to reasons he does not understand, he failed the retention board.

	c.  he was not informed of any appeal procedures or alternatives for remaining in the Army Guard Reserve (AGR) program nor did anyone from the U.S. Army Human Resources Command (HRC) meet with him.

	d.  as noted in item 20 (Signature of Person Being Separated) of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) he was not available to sign the form.

	e.  he was told by telephone, he had been transferred to the Retired Reserve and he would be eligible to receive retired pay once he turned 60 years of age.


3.  He provided: 
* a self-authored statement
* his NGB Form 22 
* his NGB Form 23B (ARNG Retirement Points History Statement), dated
9 February 2011
* his ARPC Form 249-E (Chronological Statement of Retirement Points), dated 9 February 2011
* Orders 119-86, issued by the Department of Military Affairs, State of Illinois, Camp Lincoln, dated 19 June 1992
* Orders C-04-417431, issued by the U.S. Army Reserve Personnel Center, St. Louis, MO, dated 23 April 1994
* a DD Form 108 (Application for Retired Pay Benefits), dated 27 January 2011
* a memorandum to him from HRC, Fort Knox, KY, dated 10 February 2011
* page 1-30 from the Department of Defense Financial Management Regulation (DODFMR), Volume 7B, chapter 1, dated September 2009

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 20 October 1948.  He was inducted into the Army of the United States on 10 June 1968 and he served until he was honorably discharged on 1 June 1970.  On 2 June 1970, he enlisted in the U.S. Army Reserve (USAR) and he served until he was discharged on 10 September 1972.  He enlisted in the ILARNG on 11 September 1972 and he served until
10 September 1974.  On 29 September 1980, he was commissioned as a first lieutenant in the ILARNG.  He was promoted to captain on 1 April 1985.  He continued to serve in the USAR on follow-on assignments.


3.  He submitted a copy of his NGB Form 22 that shows he was honorably discharged honorably from the ILARNG on 1 June 1992.  Item 20 (Signature of Person Being Separated) of his NGB Form 22 states "individual not available to sign."

4.  Orders Number 119-86, dated 19 June 1992, separated him from the ILARNG effective 1 June 1992 and he was transferred to the U.S. Reserve (USAR) Control Group (Reinforcement).

5.  Orders C-04-417431, dated 23 April 1994, released him from the USAR Control Group (Reinforcement) by reason of non-selection for promotion, and assigned him to the Retired Reserve, effective 1 June 1992.  His record is void of any indication these orders were subsequently amended or revoked.

6.  His NGB Form 23B, dated 9 February 2009, shows he earned a total of 1,806 career points for retired pay and 15 years, 11 months, and 4 days of qualifying service for non-Regular retirement at the time of his discharge from the ILARNG.

7.  His ARPC Form 249-E, dated 9 February 2011, shows he completed 0 years of qualifying service for non-regular service retirement.  The statement shows the total retirement points and component for the retirement year ending 27 June 1993, as USAR, 15 points.

8.  His record contains a DD Form 108, dated 27 January 2011, that shows he applied to HRC for retired pay.  Item 3 (Date Retired Pay to Begin) shows the date "20081020" (20 October 2008).

9.  He submitted a memorandum from HRC, Fort Knox, dated 10 February 2011, that stated, in pertinent part:

	a.  to be eligible for retired pay at age 60, under Title 10 U.S. Code, section 12737, a Reserve Soldier or former Reserve Soldier must have completed a minimum of 20 qualifying years of service, the last 8 years in a Reserve component.  Service in an inactive Reserve section, such as the Retired Reserve, is not creditable for retirement purposes.  Since 1 July 1949, a Reserve Soldier must have earned at least 50 retirement points per year for that service to be creditable for retirement.

	b.  an audit of his military record showed he completed 15 years, 11 months, and 4 days of qualifying service for retirement.  Accordingly, he was ineligible for retired pay.  Therefore, his application was returned.


	c.  he was told he could file a petition with this Board to review his case.

10.  He submitted a copy of page 1-30 from the DODFMR that states a member who has been placed on the retired list is legally retired and such status cannot thereafter be changed retrospectively because of a mistake or poor judgment on the part of the retiring authorities.  Fully executed orders for retirement, if not cancelled before the date of retirement, are final and may not be reopened, revoked, or amended in the absence of fraud, manifest error, mathematical miscalculation, mistake of law, or substantial new evidence.

11.  His record is void of any evidence and he has not provided any evidence that shows he completed any service that was not previously accounted for on his NGB Form 23B or his ARPC Form 249-E.

12.  Title 10, U.S. Code, sections 12731-12737 authorize retired pay for Reserve Component (RC) military service.  To be eligible for retired pay under this law, a Reserve Soldier, upon attaining age 60, must have completed a minimum of 20 qualifying years.  After 1 July 1949, a qualifying year is defined as a year in which at least 50 retirement points are earned.

13.  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.  This regulation also specifies, in part, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to non-regular service retired pay and associated benefits at age 60.

2.  His NGB Form 22 shows he was separated from the ILARNG on 1 June 1992 and he was transferred to the USAR Control Group (Reinforcement).  Orders show he was transferred to the Retired Reserve, effective 1 June 1992, by reason of non-selection for promotion.  Evidence shows he only attained
15 years, 11 months, and 4 days of creditable service for retired pay.  His record is void of any evidence and he has not provided any evidence that shows he earned at least 20 years of qualifying service for retired pay and associated benefits.
3.  To be eligible for retired pay based on non-regular service, an individual must have attained the age of 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of his or her qualifying service as an RC Soldier.  A qualifying year is defined as a year of service during which a Reservist earns at least 50 retirement points.  Although the applicant held Retired Reserve status he did not complete 20 years of qualifying service for entitlement to retired pay at age 60.

4.  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

____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)                                         AR20120001123



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ABCMR Record of Proceedings (cont)                                         AR20120001123



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