IN THE CASE OF:	  

		BOARD DATE:  8 April 2014

		DOCKET NUMBER:  AR20130009963 


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 through his Member of Congress to show he is entitled to a 20-year Nonregular (Reserve) retirement.

2.  He states he was employed full time at the 122d Army Reserve Command prior to becoming sick.  He states the Chief, Medical Officer, 5th Army, diagnosed him with terminal chronic obstructive pulmonary disease and he could no longer work.  He went to his unit and explained that he could not work and he was informed that he already had 20 qualifying years of service and should be receiving his 20-year letter.  He maintains that there is a mistake concerning his qualifying years of service which occurred during the mishandling of his records.

3.  He provides:

* self-authored statement
* DD Form 108 (Application for Retired Benefits), dated 2 May 2012, with response from the U.S. Army Human Resources Command (HRC)
* DD Form 2656 (Data for Payment of Retired Personnel), dated 2 May 2012
* HRC letter to a U.S. Senate Representative, dated 9 January 2013
* HRC ARPC Forms 249-E (Chronological Statement of Retirement Points), dated 13 June 2012 and 8 January 2013
* Conflict of Interest Disclaimer Statement, dated 30 September 1994
* Defense Finance and Accounting Service Military Leave and Earnings Statement
* HRC ARPC Form 3924 (Individual Active Duty Certificate of Performance), dated 30 September 1994
* U.S. Army Reserve Personnel Center (ARPERCEN) Orders T-09-425898, dated 16 September 1994
* Internal Revenue Service Form W-2 (Wage and Tax Statement) 1995
* ARPERCEN Orders C-07-545789, dated 19 July 1995
* two DA Forms 2-1 (Personnel Qualification Record – Part II)
* two Army Commendation Medal Certificates, dated 11 February 1990 and 11 May 1992
* Certificate of Achievement, dated 12 April 1989
* Advanced Course for Reserve Component Noncommissioned Officers Diploma, dated 7 August 1987
* Certificate of Commendation, dated 13 February 1990
* Certificate of Appreciation, dated 25 June 1992
* DA Form 2166-7 (Noncommissioned Officer Evaluation Report) for the 19-day active duty for training period in September 1994
* Certificate of Training
* Certificate of Merit
* U.S. Senatorial correspondence

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 was born on 24 November 1951.

3.  On 21 February 1970, the applicant enlisted in the U.S. Army Reserve (USAR).

4.  Headquarters, 122d USAR Command, Orders 3-55, dated 15 January 1993, reassigned the applicant to the USAR Control Group (Reinforcement) effective 15 January 1993 due to unsatisfactory participation under the provisions of Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers).  His records show he received nine unexcused absences within a 
1-year period ending 15 November 1992.

5.  ARPERCEN Orders C-07-545789, dated 19 July 1995, show he was released from the USAR Control Group (Reinforcement) and assigned to the Retired Reserve effective 19 July 1995.  The reason for his reassignment is shown as "medically disqualified for active duty."

6.  The applicant reached age 60 on 24 November 2011.  On 2 May 2012, he submitted an application for retired pay benefits.

7.  In response to his application for retired pay benefits, HRC informed him on an unknown date that he must have completed a minimum of 20 qualifying years of service with the last 8 years served in a Reserve Component to be eligible for retired pay at age 60.  HRC stated an audit of his military records showed he completed 19 years of qualifying service and, therefore, he was ineligible to receive retired pay.

8.  His Chronological Statement of Retirement Points, dated 8 January 2013, shows he was credited with 19 years of qualifying service for Nonregular (Reserve) retirement for a total of 2,160 creditable points.  This statement further shows:

	a.  During the retirement year ending (RYE) 21 February 1992, he earned 47 inactive duty points, 15 membership points, and 36 active duty points for a total of 96 (should read 98) creditable retirement points.  He was credited with 1 qualifying year for retirement for this period.

	b.  During the RYE 21 February 1993, he earned 23 inactive duty points, 15 membership points, and 18 active duty points for a total of 56 creditable retirement points.  He was credited with 1 qualifying year for retirement during this period.

	c.  During the RYE 21 February 1994, he earned 15 membership points for a total of 15 creditable retirement points.  He was not credited with a qualifying year for retirement during this period.

	d.  During the RYE 21 February 1995, he earned 15 membership points and 19 active duty points for a total of 34 creditable retirement points.  He was not credited with a qualifying year for retirement during this period.

	e.  During the RYE 18 July 1995 (last day before assignment to the Retired Reserve), he earned 6 membership points for a total of 6 creditable retirement points.  He was not credited with a qualifying year for retirement during this period.

9.  On 9 January 2013, HRC responded to a Senatorial representative on behalf of the applicant who requested assistance regarding his eligibility for Reserve retired pay at age 60.  The HRC representative reviewed the source documents sent with the applicant's request and determined the applicant earned an additional 25 total points, but unfortunately he did not increase his qualifying years of service.  The HRC representative stated the applicant's Chronological Statement of Retirement Points was updated showing he earned 2,160 total points and 19 years of qualifying service.  However, he still was not eligible for Nonregular (Reserve) retired pay at age 60.

10.  The applicant's records are void of any evidence that shows the reason he was found to be medically disqualified for continued active duty service.  Further, there is no evidence to show he has more than 19 qualifying years of service for retired pay purposes.

11.  Army Regulation 135-91 (Army National Guard and Army Reserve – Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) prescribes policies and procedures governing the various types of service obligations and participation requirements.  Soldiers will be charged with unsatisfactory participation when, without proper authority, they accrue a total of nine or more unexcused absences from scheduled inactive duty training in any 1-year period.

12.  Army Regulation 140-10, paragraph 4-10, provides that involuntary reassignment of troop program unit enlisted Soldiers to an appropriate control group of the Individual Ready Reserve is authorized for unsatisfactory participation.

13.  Army Regulation 140-10, paragraph 6-1, provides that Reserve Soldiers may request transfer to the Retired Reserve if they are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed.

14.  Title 10, U.S. Code, section 12731, provides the age and service requirements necessary to qualify for Nonregular (Reserve) retired pay at age 60.  It states individuals are eligible to receive retired pay at age 60 upon application if they have completed 20 or more years of qualifying service while a member of a Reserve Component.  This section states the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay under this chapter.

15.  Army Regulation 135-180 (Army National Guard and Army Reserve – Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing granting retired pay to Soldiers and former Reserve Component Soldiers.  Paragraph 2-1 states 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, completed a minimum of 20 years of qualifying service, and, at that time, served the last 6 of his qualifying years as a Reserve Component Soldier.

16.  Army Regulation 135-180, 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 Soldier 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 of less than a full retirement year, a minimum number of retirement points must be earned to have that period credited as qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  It is reasonable to conclude that a Soldier with 19 qualifying years toward a 
20-year retirement would not knowingly forfeit a qualifying year.  Therefore, it appears that the applicant was not properly advised of the requirements for eligibility for retired pay at age 60.

2.  Although he accrued nine unauthorized absences in the 1-year period ending 15 November 1992, the evidence of record shows the RYE's 21 February 1992 and 21 February 1993 were qualifying years for retirement (more than 50 points each year).

3.  The evidence of record shows he earned 15 membership points and 19 active duty points for a total of 34 creditable retirement points during the RYE 21 February 1995.  His total points were less than the minimum 50 points necessary to be credited with a qualifying year.  However, in the interest of equity, it would be appropriate to redistribute the necessary creditable retirement points to the RYE 21 February 1995 to make that year a qualifying year thereby entitling him to 20-year retirement benefits at age 60.

4.  The evidence of record shows the applicant reached age 60 on 24 November 2011.  Thus, as a result of the above records correction, he was entitled to receipt of retired pay effective that date.  Therefore, it would be appropriate to correct his records to show he was officially and timely notified of his eligibility for retired pay at age 60.

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 records correction may have an effect on the applicant's SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) immediately for information and assistance on the SBP and TRICARE.  A listing of RSO's by country, state, and installation is available on the Internet at:  http://www.armyg1.army.mil/RSO/rso.asp.

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.  redistributing creditable retirement points to the RYE 21 February 1995 making that year a qualifying year for retirement;

	b.  showing he completed 20 qualifying years for retirement;

	c.  showing he timely applied for retired pay effective 24 November 2011 and his application was received and processed by the appropriate office in a timely manner; and

	d.  paying the applicant all due retired pay retroactive to the date he reached 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)                                         AR20130009963



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ABCMR Record of Proceedings (cont)                                         AR20130009963



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