BOARD DATE:	  4 September 2012

		DOCKET NUMBER:  AR20120005784 


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 he be awarded credit for 20 qualifying years of service for retired pay purposes.  

2.  The applicant states his chain of command failed to protect him from reprisal due to my involvement with a U.S. Army Criminal Investigative Command (USACIDC, also known as CID) investigation of his battalion commander.  He claims the actions taken against him effectively prevented him from completing 20 years of service.  He states he was a dual status civilian and the command did not follow Department of Defense (DOD) guidelines regarding waste, fraud, and abuse witness retaliation.  

3.  The applicant states the reprisal actions taken against him included reprisals by higher headquarters; involuntary transfer from his Troop Program Unit (TPU); adverse Officer Evaluation Report (OER); denial of a TPU slot; destruction of his Command and General Staff College (CG&SC) records; ruination of his military career based on his being drawn into a fraud investigation of his battalion commander; required Congressional and Secretary of the Army involvement to vindicate him from any wrongdoing; and the absence of reprisal protection for him by the 98th Division (Training) chain of command.  

4.  The applicant provides a self-authored statement and the 16 enclosures identified therein 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's record shows after prior service in an enlisted status in the Regular Army, he was appointed a first lieutenant (1LT) in the U.S. Army Reserve (USAR) on 25 September 1970, and entered active duty on 
7 October 1970.  He was promoted to captain (CPT) on 16 March 1973.  

3.  On 19 July 1975, the applicant transferred to the USAR Control Group and served in that status until 19 March 1979, and on 20 March 1977, he was assigned to the Ready Reserve in a TPU.  

4.  On 19 July 1982, the applicant was promoted to major (MAJ).  He served in the Ready Reserve in TPUs until 2 March 1986, and on 3 March 1987, he was assigned to the USAR Control Group.  

5.  On 5 August 1989, the applicant reverted to an enlisted status and continued serving in the USAR Control Group until 23 October 1989, at which time he was transferred to the Retired Reserve.  

6.  An ARPC Form 249-E (Chronological Statement of Retirement Points) in his record shows he completed a total of 16 years and 9 months of qualifying service for retirement and accrued a total of 3498 creditable points.  

7.  The ARPC Form 249-E also confirms the applicant did not earn the minimum 50 points necessary for a qualifying year for retirement in the retirement years ending on the following dates during his USAR service:

* 4 August 1967
* 4 August 1968
* 4 August 1969
* 4 August 1970
* 4 August 1976
* 4 August 1987
* 4 August 1988
* 4 August 1989
* 22 November 1989 

8.  On 21 October 2011, the U.S. Army Human Resources Command Director, Army Transition Office, informed a Member of Congress, who had inquired on the applicant being credited with 20 qualifying years of service for retirement on behalf of the applicant, that an audit of the applicant's record confirmed he had completed 16 years, 9 months, and 00 days of qualifying service for retirement and that in order to qualify for retired pay at age 60 a member must have completed 20 qualifying years for retirement.  

9.  The applicant provides a letter from the Department of the Army Inspector General (DAIG), dated 11 September 1986 addressed to a Member of Congress who had inquired on the applicant's behalf regarding problems being experienced by the applicant in his unit.  The DAIG indicated the applicant's allegations that his battalion commander gave him a general counseling form, punitive disposition form, and adverse OER for his cooperation with a CID investigation of the battalion commander was substantiated.  The DAIG further indicated the applicant was attached to a new unit to protect him from further retribution, and permission was granted the 98th Division commander to remove the adverse OER from the applicant's record.  He further indicated the 98th Division IG would continue to take an active part in this matter to ensure all corrective actions were being taken and that the applicant was protected from further acts of retribution.  

10.  The applicant also provides a letter from the First United States Army (FUSA) Deputy Chief of Staff for Personnel (DCSPER) that responded to a          6 February 1987 inquiry from the applicant.  The DCSPER informed the applicant that while the allegations he made in his inquiry were substantially correct, his attachment to the another unit and subsequent transfer to the Control Group (Reinforcement) were neither punitive nor an adverse action.  He further indicated that the decision to attach him to another unit was for the good of all parties concerned and his transfer to the Control Group upon the completion of his tenure was consistent with appropriate regulatory guidance and sound management principles.  He further advised the applicant his military career was not terminated with his assignment to the Control Group and he could still accrue retirement points through various means and should another TPU position become available for which he was qualified, he could apply for the position.  

11.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, U.S. Code, chapter 67, sections 1331 to 1337.  This regulation specifies, in pertinent part, that to be eligible for retired pay an individual must have attained age 60 and completed a minimum of 20 years of qualifying service and that subsequent to 1 July 1949, qualifying service is granted only for each year of service an individual earns 50 or more retirement points.

12.  Army Regulation 140-185 (Training and Retirement Point Credits 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.  In pertinent part, it provides that an annual Statement of Retirement 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to be credited with 20 years of qualifying service for retired pay and the supporting documents he submitted have been carefully considered.  However, there is insufficient evidence to support his claim.  

2.  The evidence of record confirms the applicant was reprised against by his battalion commander based on his involvement with a CID investigation of that commander.  However, the letters from the DAIG and FUSA DCSPER provided by the applicant confirm that corrective action was taken with respect to the adverse actions taken against him by his battalion commander.  
3.  The DAIG and FUSA DCSPER letters also show the applicant's transfer to the USAR Control Group (Reinforcement) in 1987 was not punitive or an adverse action, and did not prevent him from earning retirement points while in that status.  As a result, it appears the applicant's failure to earn the necessary qualifying years for retirement subsequent to his transfer to the USAR Control Group was the result of his failure to perform the service necessary to earn the retirement points and qualifying years and not the result of reprisal.  Absent evidence that any official action was taken to deny him the ability to earn retirement points in the USAR Control Group, there is an insufficient evidentiary basis to support granting the 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)                                         AR20120005784



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120005784



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1