IN THE CASE OF:	  

		BOARD DATE:  19 September 2013

		DOCKET NUMBER:  AR20130002022 


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 records to show he completed 20 qualifying years of service for non-Regular retirement and he is entitled to retired pay at age 60.

2.  The applicant states he completed 19 years, 11 months, and 29 days of qualifying service.  He only needs 1 day of service credit to qualify for non-Regular retirement at age 60.

3.  The applicant provides:

* DD Form 4 (Enlistment Contract – Armed Forces of the United States), dated 13 July 1973
* DA Form 3340 (Request for Regular Army Reenlistment or Extension), dated 8 July 1977
* DD Form 214 (Report of Separation from Active Duty) for the period ending 10 July 1977
* DD Form 4, dated 11 July 1977
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 20 May 1983
* Congressional correspondence
* U.S. Army Human Resources Command (HRC) (formerly known as U.S. Army Reserve Personnel Command (ARPC)) Form 249-E (Chronological Statement of Retirement Points), dated 29 October 2012
* letter from HRC, dated 1 November 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 31 August 1952.

2.  He enlisted in the Regular Army on 13 July 1973 and he was honorably discharged on 10 July 1977.  He completed 3 years, 11 months, and 28 days of creditable active service during this period.

3.  He reenlisted in the RA on 11 July 1977 and he was honorably discharged on 10 July 1980.  He completed 3 years of active service during this period and a total of 6 years, 11 months, and 28 days of creditable active service.

4.  He enlisted in the U.S. Army Reserve (USAR) on 9 March 1981.  He served through multiple reenlistments and he attained the rank/grade of staff sergeant (SSG)/E-6.

5.  On 18 November 1996, ARPC published Orders D-11697588 ordering his honorable discharge from the USAR effective 18 November 1996.

6.  His ARPC Form 249 shows he completed 19 years, 11 months, and 29 days of service toward non-Regular retirement.  A breakdown of his retirement points is as follows:

FROM
TO
COMPONENT
TOTAL POINTS
QUAL YEAR
19960309
19961118
USAR
10
00/00/00
19950309
19960308
USAR
15
00/00/00
19940309
19950308
USAR
47
00/00/00
19930309
19940308
USAR
67
01/00/00
19920309
19930308
USAR
65
01/00/00
19910309
19930308
USAR
86
01/00/00

























19810309
19820308
USAR
72
01/00/00
19800711
19810308
BREAK
00

19790712
19800710
RA
365
00/11/29
19780712
19790711
RA
365
01/00/00



19770712
19780711
RA
365
01/00/00




01/00/00




00/00/00




00/00/00
19730712
19740711
RA
365
01/00/00





TOTAL


3663
19/11/29
7.  He appears to have requested Congressional assistance regarding his retirement on his 60th birthday.  On 1 November 2012, HRC responded to his Member of Congress as follows.

	a.  Title 10, U.S. Code, sections 12731-12737, authorize retired pay for Reserve Component 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 a Reserve Component does not approve this pay until all requirements have been met.

	b.  The Reserve Component Retirements office reviewed the applicant's military records.  His total service (qualifying and nonqualifying) time for longevity pay purposes as stated on his ARPC Form 249-E, dated 18 June 1998, is 22 years, 3 months, and 7 days.  He completed 19 years, 11 months, and 29 days of qualifying time.  He did not complete 20 qualifying years of service and therefore is not eligible for retirement benefits.  He may apply to the Army Board for Correction of Military Records to review this case.

8.  Title 10, U.S. Code, section 12731, provides that a non-Regular (Reserve) service member is entitled to retired pay upon application if the person is at least 60 years of age, has performed at least 20 years of qualifying service, and (having completed the service requirement during the period beginning 1 October 1994 and ending 30 September 1999) shall have performed the last 6 years of qualifying service while a member of a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, Reserve Component members are required to complete 20 years of qualifying service in order to be eligible for non-Regular retired pay.  A qualifying year of service for non-Regular retired pay is a full retirement year during which a Regular or Reserve member is credited with a minimum of 50 points.

2.  In this case the applicant did not complete 20 qualifying years of service.  As such, from a statutory and regulatory standpoint, he does not qualify for non-Regular retired pay.  He lacked a qualifying year of service, not 1 day of credit as he believes.  However, it is reasonable to believe that the applicant thought his last year in the Regular Army was a full qualifying year (instead of 1 day short of a qualifying year) since he had earned 365 points during that period.  

3.  During the retirement year ending (RYE) 8 March 1995, the applicant was awarded 47 retirement points which were insufficient for that RYE to count as a qualifying year.  The applicant also earned in excess of 50 retirement points during several other/previous RYE's.  Therefore, redistributing 3 of his excess points to RYE 8 March 1995 would credit him with 50 retirement points for this RYE and a qualifying year which would subsequently entitle him to non-Regular retired pay for 20 qualifying years.

4.  The above correction would entitle the applicant to receipt of his notification of eligibility to receive retired pay at age 60 (20-year letter).  However, since he is already beyond 60 years of age, with the above correction, he should be placed on the Retired List in the rank/grade of SSG/E-6 effective 31 August 2012, his 60th birthday, with entitlement to retired pay effective that date.

5.  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.

6.  In view of the foregoing, the applicant's records should be corrected as recommended below.

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:

* redistributing 3 of the applicant's excess retirement points to RYE 8 March 1995 to provide him with a full qualifying year of service for this RYE
* placing the applicant on the Retired List in the rank/grade of SSG/E-6 effective 31 August 2012
* paying him retired pay effective 31 August 2012



      _______ _  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)                                         AR20130002022



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ABCMR Record of Proceedings (cont)                                         AR20130002022



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