IN THE CASE OF:
BOARD DATE: 22 January 2013
DOCKET NUMBER: AR20120009602
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 that his records be corrected to show that he was retired by reason of 20 years of active duty service on 27 December 1993 instead of being discharged and that he be paid all back pay and allowances from that date.
2. The applicant states that at the time of his discharge in December 1993, his records only showed 15 years of active service and his previous 6 years of service, including service in Vietnam, was lost in the St. Louis Records Center fire. It took him 18 years to get officials at St. Louis to take action to retire him and show that he served 20 years.
3. The applicant provides copies of correspondence to his congressional representative, copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 1968 and 1993; copies of his Chronological Statement of Retirement Points, dated 1994 and 2011; a copy of his retirement orders, and a letter from the U.S. Army Human Resources Command notifying him that his application for retired pay had been approved.
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. The applicant was born on 9 July 1947 and was inducted into the Army of the United States (AUS) on 13 October 1966. He served until he was honorably released from active duty (REFRAD) on 5 October 1968 and was transferred to the U.S. Army Reserve (USAR).
3. He enlisted in the Regular Army on 13 December 1968 and served on active duty until he was discharged on 22 December 1972.
4. On 4 May 1977, he enlisted in the USAR and was promoted to the pay grade of E-7 on 1 April 1983. On 4 May 1984, he entered active duty in the Active Guard Reserve (AGR) Program.
5. He served in the AGR program until he was honorably discharged under the Qualitative Management Program on 27 December 1993. He had approximately 15 years of active duty service and 20 years, 9 months, and 25 days of creditable service for retired pay.
6. It appears based on the available evidence that the applicant did not apply for non-regular retired pay in 2007 when he turned 60 years of age but waited until 2011.
7. On 17 April 2011, the applicant was placed on the AUS Retired List in the pay grade of E-7 effective 9 July 2007.
8. Army Regulation 135-180, Qualifying Service for Retired Pay - Nonregular Service, provides, in part, that a USAR Soldier who completes 20 qualifying years of service is eligible to apply for Retired Pay at age 60, provided that the last 8 years were served in the Reserve Components. A qualifying year of service is one in which the Soldier earns at least 50 points during the established retirement year. Any points less than 50 do not qualify as a qualifying year for retirement purposes. A Soldier must have 20 years of service in which he or she earned 50 or more points each retirement year in order to be issued a 20-year letter.
9. The fire at the National Personnel Records Center in 1973 destroyed records of service members who served from 1919 1959.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he should have been granted a regular retirement based on 20 years of Active Federal Service in 1993, instead of a non-regular retirement in 2007 has been noted and appears to lack merit.
2. The applicants records show that he served approximately 15 years of active duty service in AUS, Regular Army and USAR components. At the time of his discharge in 1993, he had completed 20 creditable years of service for retired pay purposes and thus was eligible for a non-regular retirement at age 60.
3. The applicant has failed to show through the evidence submitted with his application and the evidence of record that he served 20 years of active duty service required to qualify for a regular retirement.
4. Therefore, in the absence of such evidence, there appears to be no basis to grant his request.
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.
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