IN THE CASE OF:	  

		BOARD DATE:	  21 November 2013

		DOCKET NUMBER:  AR20120020694 


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 record by, in effect, awarding him credit for 20 years of qualifying Reserve Component (RC) service credit and eligibility for retired pay at age 60.

2.  The applicant states:

	a.  he was forced to retire with 18 years, 8 months, 10 days of qualifying service that included 8 years, 8 months, and 10 days active service and one tour in Vietnam;

	b.  he was caught in an administrative loop regarding an outdated physical examination;

	c.  he made multiple requests for issuance of orders for the purpose of receiving a physical examination without success resulting in his inability to earn the necessary points to complete 20 qualifying years for retirement.

3.  The applicant provides:

* Self-authored statement, dated 5 November 2012
* APRC Form 249-E (Chronological Statement of Retirement Points), dated 18 September 2012
* U.S. Army Reserve Personnel Center (ARPERCEN) letter, dated 8 August 1994
* 
Endorsement, subject:  Outdated Physical Examination, dated 22 August 1994
* U.S. Army Human Resources Command (HRC), Fort Knox, KY letter, dated 1 October 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's record shows he was born on 9 March 1940.

3.  He was appointed as an officer in the Army of the United States and he entered active duty as a Regular Army commissioned officer on 25 September 1962.  He was promoted to major (MAJ) on 25 September 1968, and this was the highest rank he held while serving on active duty.

4.  On 3 June 1970, he resigned from the RA and he was honorably discharged.

5.  On 4 June 1970, he was appointed as a Reserve commissioned officer in the U.S. Army Reserve (USAR) in the rank of MAJ.  He executed an oath of office.  His record shows he continued to serve in the following components as indicated:

* USAR (4 June 1970 – 16 December 1970)
* Inactive USAR (17 December 1970 – 27 February 1974)
* USAR (28 February 1974 – 31 March 1975)
* Inactive USAR (1 April 1975 – 13 July 1977)
* USAR (14 July 1977 – 29 January 1986)

6.  Orders Number C-020911432, issued by ARPERCEN, dated 10 February 1986, directed the applicant's release from the USAR Control Group (Reinforcement), effective 29 January 1986, based on his non-selection for promotion.  This order also directed his assignment to the USAR Control Group (Retired).

7.  On 18 July 1988, the Chief, Office of Promotions, Total Army Personnel Agency, notified the applicant that based on a decision made by this Board on
22 January 1988, he was returned to an active status in the USAR effective
15 July 1988, and promoted to the rank of lieutenant colonel (LTC) effective
1 November 1985 with a date of rank of 27 November 1983.

8.  On 8 April 1992, the Chief, Transition Branch notified the applicant:

* on 24 September 1989, he attained the maximum years of authorized service for his grade
* as of 13 July 1991, he was credited with 18 years of service for retired pay benefits at age 60
* because he attained less than 20 years of qualifying federal service for retired pay, he would not be removed from an active status prior to the date he would be entitled to be credited with 20 years of qualifying service, or prior to 24 September 1992, whichever is earlier
* it was his responsibility to report completion of 20 qualifying years of service and request removal from an active status of the Reserve

9.  The applicant provides:

	a.  ARPERCEN letter, dated 8 August 1994, notifying him that his last physical examination was outdated (5 years old) and that as a result he risked elimination from service pursuant to Army Regulation 135-175 (Separation of Officers).  This letter also included options for the applicant to resolve this issue wherein, on 22 August 1994, he requested an order be published in order to obtain a physical examination.

	b.  ARPC Form 249-E, dated 18 September 2012.  It shows he retired on 19 April 2000, having completed a total of 18 years, 8 months, and 10 days of qualifying service for retirement and 3,920 creditable points during the entire period of his military service between 25 September 1961 and 18 April 2000.  It shows the last year he actively participated was retirement year ending 13 July 1988.

	c.  AHRC, Fort Knox letter, dated 1 October 2012, prepared in response to a congressional inquiry requesting assistance in obtaining the applicant's eligibility for RC retired pay.  The Director, Army Transition Office, provided:

		(1)  that Title 10, U.S. Code, sections 12731-12737, authorizes retired pay for RC military service.  To be eligible for retired pay under this law, a Reserve Soldier or former Reserve Soldier, upon attaining 60 years of age, must have completed a minimum of 20 qualifying years of service. After 1 July 1949, a qualifying year is defined as having earned at least 50 retirement points.  The law authorizing retired pay based on service in the RC does not approve this pay until all requirements have been met.

		(2)  An audit of the applicant's military record shows he completed 18 years, 8 months, and 10 days of qualifying service for retirement; therefore, he is not eligible for retirement benefits.

		(3)  The applicant could apply to this Board for relief.

10.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR soldiers.  Chapter 6 contains guidance on the transfer of RC members to the Ready Reserve.  Chapter 7 governs the removal of members from the Reserve Active Status List (RASL) based on their total commissioned service or length of service and states that RC LTCs will be removed when they complete a total of 28 years of commissioned service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should receive sufficient qualifying service and retirement points for the purpose of retirement.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant initially entered active duty on 25 September 1961.  He was notified he reached the maximum years of service for his grade on 24 September 1989, at which time he attained 18 years of qualifying service.  However he was allowed to remain in an active status until he completed 20 years of qualifying service or until 25 September 1992, whichever came first.  His ARPC Form 249-E on file shows he ultimately completed 18 years, 8 months, and 10 days of qualifying service.  However, it documents no active participation in the USAR beyond 13 July 1988.  There is no evidence of record and he did not provide any evidence to show he performed any additional active service to attain 20 years of qualifying service necessary to receive retired pay benefits.

3.  Finally, notwithstanding the applicant's claim that he was forced to retire based on an outdated physical examination and his inability to obtain orders to 

allow him to obtain a current physical; the evidence he provides confirms he was untimely notified of this information 5 years after his physical examination expired and nearly 2 years after his 25 September 1992 mandatory retirement date, at which time he should have been removed from active status.  

4.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20120020694



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ABCMR Record of Proceedings (cont)                                         AR20120020694



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