BOARD DATE:	  23 April 2013

		DOCKET NUMBER:  AR20120015124 


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 records to show additional creditable service.

2.  The applicant states he had four breaks in service due to being discharged instead of being placed in the U.S. Amy Reserve (USAR) Individual Ready Reserve as he requested.  An incorrect record of retirement points resulted in him not being granted protection under the 18-rule (sanctuary).  He states he had a bad year in 1979.  He missed several drills due to multiple personal problems occurring that year and he received only 49 points. 

3.  The applicant provides an undated letter from the U.S. Army Human Resources Command denying him retired pay; two ARPC Forms 249-E (Chronological Statement of Retirement Points); an Army National Guard (ARNG) Retirement Points History Statement; USAR discharge orders, dated 
12 December 1995; ARNG discharge orders, dated 27 October 1992; a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 1 November 1992; two DD Forms 214 (Report of Separation from Active Duty); and a DD Form 215, dated an 18 July 2012. 

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 initially enlisted in the Regular Army (RA) on 11 March 1966.  His career in the RA, USAR, and ARNG spans almost 30 years.  He was discharged from the USAR on 12 December 1995.  He was born on 
9 September 1946 and turned age 60 in 2006.

3.  The applicant provides three chronological statements of retirement points, dated 20 January 2009, 19 March 2012, and 19 April 2012.  Only a copy of the 19 March 2012 ARPC Form 249-E is included in the official record.  Each form provides slightly different information.

	a.  The chronological statement, dated 23 January 2009, covers the period 
11 March 1966 through 1 November 1992.  It shows 17 years, 7 months, and 
27 days of creditable service with breaks in service from 11 March 1972 through 18 February 1975 and from 4 December 1979 through 22 September 1982.  

	b.  The ARPC Form 249-E, dated 19 March 2012, covers the period from 
11 March 1966 through 11 December 1995.  It shows 20 years, 8 months, and 19 days of creditable service with breaks in service from 1 April 1974 through 18 February 1975 and 4 December 1979 through 22 September 1979.

	c.  The ARPC Form 249-E, dated 19 April 2012, covers the period from 
11 March 1966 through 12 December 1995.  It shows 19 years, 7 months, and 20 days of creditable service with breaks in service from 11 March 1972 through 9 April 1972, from 1 April 1974 through 18 February 1975, and from 4 December 1979 through 22 September 1982.  This form provides the following:

* Regular Army (RA) service - 11 March 1966 through 22 January 1969 
* USAR service - 23 January 1969 through 10 March 1972 with award of only 15 membership points per year
* a break in service from 11 March 1972 through 9 April 1972
* USAR service - 1 April 1974 through 18 February 1975 (10 months and 18 days) 
* RA service - 19 February 1975 through 16 February 1976 (3 years, 11 months, 29 days)
* ARNG service - 17 February 1979 through 3 December 1979 with award of 49 retirement points
* a break in service - 4 December 1979 through 22 September 1982
* ARNG service - 23 September 1982 through 22 September 1992 with 10 creditable years towards retirement
* USAR service - 23 September 1992 through 12 December 1995 with award of only membership points for this period of service

4.  At some point in 2012, DFAS notified the applicant he did not qualify for retirement pay because his creditable service only totaled 19 years, 7 months, and 20 days and he had not been issued a "Notification of Eligibility for Retired Pay at Age 60” (commonly referred to as the 20-year letter).

5.  Title 10, U.S. Code, subsection 12732 (Retired Pay for Non-Regular Service) states, in part, a Soldier who has completed 18, but less than 20 years of qualifying service for retired pay will not be involuntarily separated without the approval of the Secretary of the Army or his designated representative.

6.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service), then in effect, set forth the policies implementing retired pay for Soldiers and former Reserve components Soldiers.  In pertinent part it provides the following:

	a.  to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60 and completed a minimum of 20 years of qualifying service; 

	b.  a qualifying year is defined as any year in which a Soldier earns 50 qualifying retirement points.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's service spanned 29 years, 9 months, and 2 days, of which 19 years, 7 months, and 20 days is currently shown as creditable service for retirement purposes.  

2.  While it is the responsibility of every Soldier to ensure their records are correct it is also the responsibility of the Army to ensure the records are properly maintained, that the information in those records is correct, and that they are complete and updated in a timely manner.  

3.  It appears that, prior to his release from the ARNG in 1992, the applicant was under the impression he had the necessary time to qualify for retirement.  The record contains no indication that he was advised he did not have the necessary qualifying service until it was too late for him to rectify the matter.  

4.  To effectively deny the applicant retired pay based on one bad year which was short one retirement point  and 3 months of service is an injustice.  

5.  Therefore, it would be appropriate to redistribute the applicant's retirement points to show he has 20 qualifying years of service, showing he was transferred to the Retired Reserve, and showing he applied for retirement to be effective       9 September 2006 (his 60th birthday) and his application was processed in a timely manner, and pay him back retired pay effective from that date.

6.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

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 the applicant's retirement points to show he has 20 qualifying years;

	b.  revoking his 12 December 1995 discharge and showing he was transferred to the Retired Reserve effective 12 December 1995; and

	c.  showing he applied for retired pay and his application was processed in a timely manner to be effective 9 September 2006 (his 60th birthday), and paying him back retired pay effective from that date.



      _______ _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)                                         AR20120015124



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ABCMR Record of Proceedings (cont)                                         AR20120015124



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