IN THE CASE OF:
BOARD DATE: 24 July 2012
DOCKET NUMBER: AR20120001471
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 military records to show he was transferred to the Retired Reserve in 1998.
2. The applicant states he does not understand why he was discharged from the Pennsylvania Army National Guard (PAARNG). He does not believe this is any way to treat a Soldier with over 22 years of service.
3. The applicant provides copies of:
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Orders 103-036, State of Pennsylvania
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. Records show the applicant was born on 5 June 1955 and he will reach age 60 on 5 June 2015.
3. The applicant's ARPC Form 249-E (Chronological Statement of Retirement Points) shows he completed a total of 22 years, 9 months, and 9 days of qualifying service towards retirement pay during the following years:
* 15 June to 19 August 1973: Delayed entry program
* 20 August 1973 to 22 March 1982: Regular Army
* 23 March 1982 to 16 June 1983: No military service
* 17 June 1983 to 16 June 1984: U.S. Army Reserve (USAR)
* 17 June 1984 to 16 June 1997: ARNG
* 17 June 1997 to 2 February 1999: USAR (this period shows a total of
24 points for retirement)
4. On 15 February 1995, the Adjutant General's Office, State of Pennsylvania, provided the applicant a memorandum notifying him of his eligibility for retired pay at age 60. This notification also informed him that his eligibility for retired pay could not be revoked or denied on the basis of any error, miscalculation, misinformation, or administrative determination of years of creditable service unless it resulted directly from fraud or misrepresentation on his part.
5. NGB Form 22, effective 1 July 1997, reports the applicant was not selected for retention.
6. Orders 103-036, State of Pennsylvania, dated 4 June 1997, discharged the applicant from the PAARNG and transferred him to the USAR Control Group (Reinforcement). His characterization of service was honorable.
7. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning, removing, and transferring USAR Soldiers. It states an officer or enlisted Soldier who has accrued 20 years of qualifying service for retired pay must earn a minimum of 50 retirement points annually to be retained in an active status in the USAR. If a Soldier does not earn the required 50 retirement points during a retirement year and the Soldier does not request a one-time waiver, the Soldier may request discharge or transfer to the Retired Reserve.
8. Section 12731(d) of Title 10, U.S. Code, states the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay. The notice shall be sent, in writing, to the person concerned within one year after the person completes that service. Section 12738(a) states after a person is notified that he or she has completed the years of service required for eligibility for retired pay, the persons eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service unless it resulted directly from the fraud or misrepresentation of the person.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his military records should be corrected to show he was transferred to the Retired Reserve in 1998.
2. The applicant's ARPC Form 249-E indicates he was placed in the USAR in June 1997. His service in the USAR ended on 2 February 1999. This was most likely due to him not earning the required 50 points per year.
3. There is no evidence of record and the applicant has not provided any evidence showing he requested a transfer to the Retired Reserve.
4. The evidence clearly shows that he has completed more than 20 years of qualifying service and is fully eligible to receive retired pay at age 60, provided he makes a request for this pay.
5. In view of the above, here is no error or injustice that requires a correction of his military records. Therefore, his request should be denied.
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) AR20120001471
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ABCMR Record of Proceedings (cont) AR20120001471
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