IN THE CASE OF:	  

		BOARD DATE:  1 August 2013

		DOCKET NUMBER:  AR20120022093 


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, in effect, correction of his record to show he was retained in service under Title 10, U.S. Code, section 1176(b) (10 USC 1176(b)) and allowed to complete 20 years of Reserve service qualifying for retired pay. 

2.  The applicant states he was improperly discharged after completing 18 years, 9 months, and 15 days of service because he was protected by the 18-year lock-in under 10 USC.  He further states until recently he was unaware of the provisions of 10 USC 1176 which prevents service members with more than 18 years of service from being involuntarily separated.

3.  The applicant provides: 

* self-authored statement
* Enlisted Qualitative Retention Board letter
* Order 43-07
* DD Form 256A (Honorable Discharge)
* Department of the Army Reserve Personnel (DARP) Form 249-3 (Chronological Record of Military Service)
* Point Paper – Sanctuary

CONSIDERATION OF EVIDENCE:

1.  Title 10, USC, 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.  His military records show he served on active duty in the U.S. Navy and in the Navy Reserve prior to his enlistment in the U.S. Army Reserve (USAR) on 30 June 1964.  He served 3 years in the USAR.  He had no military status from 30 June 1967 through 12 August 1973.  On 13 August 1973, he enlisted again in the USAR. 

3.  He provides a 96th USAR Command letter, dated 18 September 1981.  The letter stated the applicant's records would have to be screened to determine whether he would have completed 20 years of service for retirement purposes by 5 December 1981.
 
4.  He provides Order 43-07, issued by Headquarters, 96th Army Reserve Command, dated 30 June 1982, transferring him from this unit to the USAR Control Group (Reinforcement) effective 1 June 1982 due to no position vacancy as a result of a change in the Table of Distribution and Allowances (TDA).

5.  He was honorably discharged from the USAR in the pay grade of E-7 on 1 January 1983.  

6.  His records contain a Retired Activities letter, dated 8 December 1987, with an attached DARP Form 249-3, dated 7 December 1987.  It shows that at the time he was credited with 15 years, 9 months, and 15 days of qualifying service for retired pay.  The letter indicated if the above form did not reflect all service and points earned he would need to submit documentary evidence to support his claim of additional service and points.

7.  He turned 60 years of age on 14 January 1991.

8.  He provides a Point Paper which details various aspects of the "sanctuary" provision for Soldiers with 18 or more and less than 20 years of qualifying service for retired pay.

9.  A USAR Personnel Command letter to the applicant, dated 25 February 2002, stated a corrected copy of a DARP Form 249-3, dated 17 March 1994, shows he was credited with a total of 17 years, 9 months, and 15 days of qualifying service for retired pay benefits.  The attached DARP Form 249-3 also shows he was credited with 3,055 points.

10.  The applicant provides a self-authored statement indicating he is a Korean War veteran who served 26 plus years in the military service of this country.  He states he accumulated 3,099 points toward retirement with the minimum required for retirement in 20 years being 1200 points.  These cumulative years include active duty and Reserve time with the U.S. Navy and U.S. Army.  He was eligible to retire on 1 January “1961.”  When he applied for retired pay he was informed that he had completed 18 years, 9 months, and 15 days of active service leaving him 1 year, 2 months, and 15 days short of qualifying for retirement.  He recently discovered that since he had more than 18 years and less than 20, his right to complete his requirement to retire with 20 "good" years was protected under 10 USC 1176.

	a.  His last tour of duty was with the 4153d USAR School in Albuquerque, NM on 15 June 1982.  He received several letters of commendation for his performance as an instructor with that unit.  In June 1982, he was asked by his commanding officer (Colonel JDG) to take voluntary retirement.  His commanding officer stated that since he had completed 20 years of service toward retirement that he would not submit a request for the applicant's retention.  His reasoning was that he needed to promote an individual to sergeant first class (SFC) in the position occupied by the applicant.  He was reluctant to do so since he wasn't sure he had 20 "good" years toward retirement.  His commanding officer assured him that Captain GJS (Administrative Officer) had verified his records.  He told his commander that he still wanted to stay [in an active status].  The next day he was informed that it was his last day with the 4153d USAR School and that his 20-year letter would be forthcoming.  He never received a 20-year letter.

	b.  On 1 August 1982, he was transferred to the Reserve Components Personnel and Administration Center.  On 23 December 1982, he received notification of his pending discharge.  He received his discharge certificate on 1 January 1983 (1 year, 2 months, and 15 days short of qualifying for retirement (see DARP Form 249-“5” attached)).

11.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing granting "retired pay" to Soldiers and former Reserve Component Soldiers.

	a.  Paragraph 2-8 describes qualifying service as service performed in an active status in a Reserve Component or in active Federal service.  After 30 June 1949, a Reserve member must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service.

	b.  Paragraph 2-9 states that active status in the Ready Reserve, the Standby Reserve, and the Active National Guard after 30 June 1949, but insufficient retirement points earned for such service to be credited as qualifying service is not creditable as qualifying service. 

12.  Army Regulation 140-111 (USAR Reenlistment Program) states a Soldier assigned to the Selected or Ready Reserve or the Standby Reserve (Active Status List) is serving in an active status.

	a.  The retention of an enlisted Soldier selected for involuntary separation (other than for physical disability or for cause) or denied reenlistment upon expiration of term of enlistment (other than for physical disability or for cause) in an active status after completion of 18 or more years but less than 20 years of qualifying service for retired pay is required by law (10 USC 1176(b)) unless the Soldier consents to removal.  This is commonly known as "sanctuary."

	b.  Soldiers may be extended for retention in an active status to complete 20 years of qualifying service for retired pay.

13.  Title 10, USC, section 12731 states, except as provided in subsection (c), a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person:

	a.  is at least 60 years of age;

	b.  has performed at least 20 years of service computed under section 12732 of this title;

	c.  is not entitled, under any other provision of law, to retired pay from an armed force.

14.  10 USC 1176(b) states, effective 23 October 1992, a Reserve enlisted member serving in an active status who is selected to be involuntarily separated (other than for physical disability or for cause), or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause), and who on the date on which the member is to be discharged or transferred from an active status is entitled to be credited with at least 18 but less than 20 years of service computed under section 12732 of this title, may not be discharged, denied reenlistment, or transferred from an active status without the member's consent before the earlier of the following:  If as of the date on which the member is to be discharged or transferred from an active status the member has at least 18, but less than 19, years of service computed under section 12732 of this title –
 
	a.  the date on which the member is entitled to be credited with 20 years of service computed under section 12732 of this title; or

	b.  the third anniversary of the date on which the member would otherwise be discharged or transferred from an active status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  Though he contends a USAR retirement only requires 1200 points and that he had 3,099 points, a Soldier is required to have at least 20 qualifying "good" years to be eligible for a nonregular retirement.  Therefore, the total number of points he acquired is not an issue in this case.

2.  Evidence shows he was transferred from his USAR unit to the USAR Control Group (Reinforcement) due to lack of a position vacancy as a result of a change in the unit TDA.  Evidence shows that at the time he was credited with 15 years, 9 months, and 15 days of qualifying service for retired pay.  There is no evidence he requested a transfer to another unit with an authorized position vacancy or that he attempted to reenlist in an effort to complete the necessary service to gain eligibility for nonregular retired pay.  As such, there is no evidence of inequity or injustice in this regard.

3.  He was discharged effective 1 January 1983, nearly 10 years prior to the effective date of the "sanctuary" provision under 10 USC 1176(b).  Therefore, he was not protected under this provision of the law.

4.  Further, though his records contain a DARP Form 249-3 showing he had more than 18 qualifying years of service for retired pay, based on a revised copy of his DARP Form 249-3, it appears at the time of his discharge he had completed only 17 years, 9 months, and 15 days of qualifying service for nonregular retirement purposes.  This would have been insufficient service to protect him under "sanctuary" even if it had been in effect at the time.

5.  In view of the foregoing, there is no basis for correction of his record to show he was retained in service under 10 USC 1176(b) and allowed to complete 20 years of Reserve service qualifying for retired pay.

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)                                         AR20120022093



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ABCMR Record of Proceedings (cont)                                         AR20120022093



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