IN THE CASE OF:	  

		BOARD DATE:	  27 August 2013

		DOCKET NUMBER:  AR20120021824 


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 he has 20 years of qualifying service for Nonregular retirement.

2.  The applicant states:

	a.  Around September 1990, he was informed by his commander that his "position tour" would not be extended.  He knew he was close to having 20 qualifying years, but he could not prove it so he enrolled in the Command and General Staff Course (CGSC).  He attended drills (training assemblies) for points only in 1990 and 1991 and attended CGSC "summer camp" in June 1991.

	b.  Military records do not show he had 20 good years; however, his personal records do.  He tried calling several people to help him prove this, but no one has tried to help other than telling him he had only 8 years according to their records. 
He was depressed, but he did not have proof.

	c.  He had several U.S. Army Reserve Personnel Center (ARPC) 
Forms 249-E (Chronological Statement of Retirement Points) from different times, but they had confusing data.  One said 6 years and another said 8 years.  After 15 years of numerous calls to the U.S. Army Reserve Command, his former units, recruiters, the Department of Veterans Affairs (VA), and the Veterans of Foreign Wars he was very discouraged.  He found more proof but was still 3 years short.  In January 2011, he called the VA toll-free number and was put through to Mr. T____ B____ at the U.S. Army Human Resources Command (HRC), Fort Knox, KY.  After several talks and email exchanges they discovered the 3 missing years.

	d.  When HRC ran the data through their computers, they said a discharge showed up but HRC could not say why he was issued a discharge.  The orders are dated May 1992 with an effective date of July 1991.  Ms. L____ W____ at HRC said his records were a mess.

	e.  He received an ARPC Form 249-E from HRC, dated 13 July 2011, that showed he had 2,676 points.  However, according to his computation, the correct total is 3014.  After adding 24 points – 16 points in 1980-1981 and 8 points in 1990-1991 – the total is 3,038 points.

3.  The applicant provides an ARPC Form 249-E, discharge orders, a DA Form 4447-R (Adjustment Certification Worksheet), two letters, three DA Forms 2349 (Military Pay Voucher), and a DA Form 3686 (Leave and Earnings Statement).

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 28 September 1945.  Having prior active duty and Reserve Component (RC) service, his records show he was appointed as a Reserve commissioned officer in the rank of second lieutenant in the Mississippi Army National Guard on 16 May 1977.  He was honorably discharged from the Mississippi Army National Guard on 20 July 1980 in the rank of first lieutenant and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

2.  On 23 September 1981, he was assigned to a USAR troop program unit (TPU).  On 14 May 1984, he was promoted to the rank of captain (CPT) in the USAR.  On 29 December 1990, he was released from the TPU by reason of completion of command tenure and assigned to the USAR Control Group (Reinforcement).

3.  His records contain a Chronological Record of Military Service, dated 18 October 1989, wherein it shows, he had 13 years, 10 months, and 5 days of qualifying service for retirement as of 2 November 1989 and a total of 2,396 retirement points.

4.  His records contain a memorandum, undated, issued by the USAR Personnel Center, St Louis, MO, (now known as HRC) notifying him that he was not selected for promotion after a second consideration by the Army Reserve Components Selection Board that convened on 5 March 1991 and reported its findings on 22 April 1991.  It further stated, in part, his transition from an active status was mandatory by 20 July 1991 unless he was eligible for and requested transfer to the Retired Reserve.  This memorandum further stated a Reserve Status Statement and Election of Options form was attached that indicated his status.  A response was required by 17 February 1992 or action would be taken to discharge him.

5.  The attached Reserve Status Statement and Election of Options form shows an "X" in paragraph 3a indicating the applicant was in the excepted category of eligible to request a transfer to the Retired Reserve.  The election of options available under paragraph 3 included, in part:  (a) I do desire transfer to the Retired Reserve and (b) I do not desire transfer to the Retired Reserve.

6.  The Reserve Status Statement and Election of Options form is blank.  There is no indication that shows the applicant ever responded to the notification that he was not selected for promotion to major after a second consideration and his transition from an active status was mandatory by 20 July 1991.

7.  Orders D-05-214472, dated 6 May 1992, issued by the USAR Personnel Center honorably discharged him from the Ready Reserve effective 20 July 1991.

8.  The applicant provides, and his records contain, a Chronological Statement of Retirement Points, dated 13 July 2011, wherein it shows he had 19 years, 6 months, and 18 days of qualifying service for retirement as of 20 July 1991 and a total of 2,676 retirement points.  It shows he earned 48 retirement points (including 11 membership points) for retirement year 3 November 1990 through 19 July 1991.

9.  The applicant contends that this form is wrong, in part, as follows:

	a.  From 3 November 1980 through 2 November 1981, it shows he earned only 15 membership points and was credited with 15 total points, but he also earned 16 inactive duty points (IDT) that are not shown for a total of 31 points.

	b.  From 3 November 1989 through 2 November 1990, it shows he earned 49 IDT, 168 extension course points, 15 membership points, and 15 active duty (AD) points.  This equaled 247 total creditable points, but the form shows he was only credited with 75 total points.

	c.  From 3 November 1990 through 19 July 1991, it shows he earned 24 IDT points, 11 membership points, and 13 AD points and was credited with 48 total points.  However, he should have been credited with 28 IDT points and 15 membership points for 56 total points.  He believes he should have been credited with a total of 3,038 retirement points vice the 2,676 that is shown on the form.

10.  The applicant provides a letter from the Chief, Retired Pay Branch, HRC, dated 8 July 2012, in response to his request for entitlement to Nonregular retired pay.  The letter advised the applicant that since 1 July 1949, a Reserve Soldier must have earned at least 50 retirement points per year for that service to be creditable for retirement.  An audit of his military records showed he completed 19 years, 6 months, and 18 days of qualifying service for retired pay.  Accordingly, he was ineligible for retired pay as shown on his ARPC Form 249-E.

11.  Army Regulation 135-180 (Army National Guard and Army Reserve – Qualifying Service for Retired Pay Nonregular Service) provides, in part, that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have:  (a) attained age 60; (b) completed a minimum of 20 years of qualifying service; and, (c) served the last 8 years of his or her qualifying service as an RC Soldier.  The requirement to serve the last 8 years in an RC has since been amended to the last 6 years in 2002 and eliminated in 2005.

12.  Instructions for the Retirement Points Accounting System (RPAS), in effect at the time, stated RC Soldiers were required to earn a minimum of 50 retirement points each full retirement year to have that year credited as qualifying service.  For periods less than a full retirement year, a proportionate number of points must be earned to have the partial year credited as qualifying service.  The 
60-point rule provided that no more than a combined total of 60 points may be credited for IDT, extension courses, and membership.  In most cases a TPU member would receive 48 IDT points and 15 membership points; however, out of the total 63 points, only 60 points would be credited toward retired pay.

13.  Army Regulation 140-185 (Army Reserve – Training and Retirement Point Credits and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized.  It states, in part, retirement points are earned by USAR Soldiers for AD, or while in an active Reserve status for ADT, IDT, Reserve membership, and for other activities specified in the regulation.  If a Soldier is separated or removed from an active status during a retirement year, the Soldier may be credited with a proportionate maximum number of points for the year.

14.  Army Regulation140-185, appendix A, states if a Reserve member serves in an active status for 256-261 days, the maximum points allowed for IDT are 43, and for 159-164 days, the maximum points allowed for IDT are 27.  Appendix B states if a Reserve member serves in an active status for 256-262 days, the minimum number of points required for a partial year for qualifying service is 36, and if a member serves 161-168 days, the minimum number of points required is 23.  Appendix C states if a Reserve member serves in an active status for 
256-279 days, the member is credited with 11 membership points; if the member serves 159-182 days, the member is credited with 7 membership points.

15.  Title 10, U.S. Code, sections 12731 through 12739, authorize retired pay for RC military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.  The term "good years" is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retired pay at age 60.

16.  Title 10, U.S. Code, section 12646, states that if a Reserve commissioned officer is entitled to be credited with at least 19 but less than 20 years of service computed under section 12732 of this title on the date prescribed for the discharge or transfer from an active status, he or she may not be discharged or transferred from an active status under chapter 573, 1407, or 1409 of this title or chapter 21 of Title 14 without his  or her consent before the earlier of the following dates:

	a.  the date on which he or she is entitled to be credited with 20 years of service computed under section 12732 of this title or

	b.  the second anniversary of the date on which he or she would otherwise be discharged or transferred from an active status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he had 20 years of qualifying service for Nonregular retirement; however, his records were inaccurate and only after 15 years of numerous calls were his records were corrected to show most of his 20 years of qualifying service.

2.  It is evident that the applicant's records contain several inaccuracies that support his contention.  A Chronological Record of Military Service, dated 19 October 1989, shows he was only credited with 13 years, 10 months, and 5 days of qualifying service at that time and 2,396 retirement points for the period 23 July 1963 through 2 November 1989.  A Chronological Statement of Retirement Points, dated 13 July 2011, shows that as of 20 July 1991, less than 2 years later, he actually had 19 years, 6 months, and 18 days of qualifying service for retirement and a total of 2,676 retirement points.

3.  His records also contain an undated memorandum from HRC notifying him he was not selected for promotion for a second time and his transition from an active status was mandatory by 20 July 1991.  His records are void of any documentation that shows he received this memorandum.

4.  The evidence of record indicates the applicant was improperly discharged from the USAR on 20 July 1991.  His records show he should have been credited with 19 years, 6 months, and 18 days of qualifying service for retired pay as of the date of his discharge and would have been eligible for sanctuary.  Therefore, he should have been allowed to continue to serve in the USAR at through           2 November 1991.  It is reasonable to presume that if he had been notified at that time that he was eligible to serve until he had 20 years of qualifying service, he would have elected to do so.

5.  Therefore, as a matter of equity and fairness, it would be appropriate to void Orders D-05-214472, dated 6 May 1992, and show he was transferred to the Retired Reserve effective 2 November 1991.  He would then be credited with 4 additional membership points for his retirement year ending (RYE) 2 November 1991 to make it a qualifying year for retirement.  The foregoing action would result in 20 years of qualifying service for retirement purposes, thereby establishing his eligibility to receive retired pay at age 60.

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 RSO's by country, state, and installation is available on the Internet at http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

7.  With respect to his contention that he was not properly credited with all the points he earned, although his ARPC Form 249, dated 13 July 2011, shows all the points earned each retirement year, he was correctly credited with a maximum of 60 IDT points in addition to all AD points shown for each retirement year in accordance with regulatory guidance.  Therefore, while he may have earned a combined total of 247 points for RYE 2 November 1990, he was correctly credited with 60 total points for IDT and 15 AD points for a total of 75 creditable points.

8.  It is unclear why the applicant contends he should have been credited with 16 IDT points for the RYE 2 November 1981 and 31 total points for that retirement year vice the 15 total points shown on his ARPC Form 249-E.  Regardless, as he did not earn at least 50 retirement points during that year, it did not count as a qualifying year for retirement.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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.  voiding Orders D-05-214472 discharging him from the USAR effective 20 July 1991;

	b.  issuing orders transferring him to the Retired Reserve effective 3 November 1991, with a qualifying year for retirement with RYE 2 November 1991, after completing 20 qualifying years of service for retired pay;

	c.  showing he was eligible for and applied for retired pay to be effective when he turned age 60 and that his application for retired pay was processed in a timely manner; and

	d.  paying him all due retired pay retroactive to the date he turned age 60.



      ____________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)                                         AR20120021824



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120021824



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1