IN THE CASE OF:  

		BOARD DATE:  4 March 2014

		DOCKET NUMBER:  AR20130010861 


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 completed
8 years of qualifying Reserve service, that he transferred to the Retired Reserve, and he is entitled to retired pay retroactive to July 2007.

2.  The applicant states he completed 13 years of active duty service in the 
U.S. Army and then transferred to the Individual Ready Reserve (IRR).  After completing a total of 20 years of service, he received a retirement packet and he was placed in a retired status.  It was his understanding that he would later be eligible for retirement benefits.

   a.  In 2007, he submitted an application for retired pay and was informed that he was not eligible for retired pay.  The reason for the denial was that he had not completed 8 years of qualifying service in a Reserve status.

   b.  He states that during the last 7 years of his Reserve service, he was available for service, including the eighth year of Reserve service (in 1998). However, his records do not show the eighth year of service because an administrative decision was made to place him in a retired status in 1997.

   c.  He adds that he was not aware of his right to appeal or any other action he could take regarding the decision to deny his application for retired pay.

3.  The applicant provides a copy of his application for retired pay.


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 in July 1947.

3.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was inducted into the U.S. Army on 21 January 1970, honorably released from active duty on 20 September 1971, and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his Reserve obligation (with a terminal date of 20 January 1976).  It shows he had completed 1 year and 8 months of net active service during this period.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 35 (Record of Assignments) that he:

* served in the USAR from 21 September 1971 through 20 January 1976
* had a break in service from 21 January 1976 through 10 September 1981
* enlisted in USAR Delayed Entry Program (DEP) on 11 September 1981
* enlisted in the Regular Army (RA) on 24 September 1981

5.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 24 September 1981 and he was honorably discharged on 9 February 1988 based on being ordered to active duty as a Reserve warrant officer (WO).  It shows he had completed:

* 6 years, 4 months, and 15 days of net active service during this period
* 1 year, 8 months, and 0 days of total prior active service
* 4 years, 4 months, and 0 days of total prior inactive service

6.  The applicant was appointed as a Reserve WO of the Army with concurrent call to active duty on 10 February 1988.
7.  Headquarters, U.S. Army Personnel Command, TAPC-PDT-RS, Alexandria, VA, message, date-time group 031339Z July 1991, subject:  Release from Active Duty (REFRAD), approved the applicant's REFRAD under the provisions (UP) of Army Regulation 635-100 (Personnel Separations - Officer Personnel), chapter 3 (Unqualified Resignation), and the Fiscal Year 1991 (FY91) Officer Voluntary Early Release/Retirement Program (VERRP), effective 30 September 1991.

8.  A DD Form 214 shows the applicant entered active duty this period on
10 February 1988, was honorably REFRAD on 30 September 1991 UP VERRP, and transferred to the USAR Control Group (IRR).  It shows he had completed:

* 3 years, 7 months, and 21 days of net active service during this period
* 8 years, 0 months, and 16 days of total prior active service
* 4 years, 4 months, and 0 days of total prior inactive service

9.  Two U.S. Total Army Personnel Command, St. Louis, MO, memoranda, show:

   a.  on 24 June 1996, the applicant was notified that he was considered for promotion to the next higher grade by a Reserve Components (RC) Selection Board, but the board did not recommend him for promotion; and

   b.  on 15 September 1997, the applicant was notified that he was considered for promotion to the next higher grade by a RC Selection Board, but the board did not recommend him for promotion; as this was his second non-selection, he must be discharged unless he was eligible for and he requested transfer to the Retired Reserve.

10.  The applicant's ARPC Form 249-E (Chronological Statement of Retirement Points) shows he completed 16 years, 0 months, and 21 days of qualifying service for retirement as of 5 December 2007.

   a.  It shows the applicant's creditable military service starting with a retirement year beginning (RYB)  11 September 1975 as a WO in the RA and continuing through retirement year ending (RYE) 1 October 1991, and that he was credited with 16 years and 21 days of qualifying service for retirement during this period.

   b.  It also shows from RYB 3 October 1991 through RYE 2 October 1996 he earned 15 membership/total points for each of the seven RYs and then, from 
3 October 1997 through 4 December 1997, he earned 3 membership/total points.
   
11.  A review of the applicant's military personnel records failed to reveal any evidence of a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) or that he requested transfer to the Retired Reserve.
12.  In support of his application he provides a copy of his DD Form 108 (Application for Retired Pay Benefits), dated 9 August 2006, and a U.S. Army Human Resources Command, St. Louis, MO, memorandum, dated 
12 June 2007.  

   a.  The memorandum shows the Chief, Transition and Separations Branch, informed the applicant that Title 10, U.S. Code, chapter 67, authorizes retired pay for current and former members of the RC who have reached age 60 and completed the minimum of 20 years of qualifying service.  He noted that a further requirement is the last 8 years of qualifying service must be performed as a member of a RC.

   b.  The applicant was informed that he had completed the minimum years of qualifying service (i.e., the first 12 qualifying years); however, he lacked the additional 8 years of qualifying service in a RC.  Therefore, he is not eligible for retired pay benefits.

13.  Army Regulation 140-185 (Training and Retirement Points Credit and Unit Level Strength) prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers (Ready Reserve and Active Standby Reserve).  Chapter 3 (Records) provides that an annual Statement of Retirement Points will be prepared for all Soldiers regardless of the number of points awarded.  The purpose of the statement is to give a permanent record of the total retirement points a Soldier earns during a RY; to tell the Soldier whether he/she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status; and to give the Soldier an opportunity to request correction of errors in the statement.

14.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of retired pay to Soldiers and former RC Soldiers.  Chapter 2 provides in:

	a.  paragraph 2-1 that 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 served the last
8 years of his/her qualifying service as a RC Soldier; and

	b.  paragraph 2-8b that after 30 June 1949, a Reservist must earn a minimum of 50 retirement points each RY to have that year credited as qualifying service.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to show he completed 8 years of qualifying service for retirement by adding one qualifying year of Reserve service was carefully considered.

2.  Records show the applicant's initial period of active duty and Reserve service was from 21 January 1970 through 20 January 1976; a period of 6 years.  After a break in service, he enlisted in the USAR on 11 September 1981.

3.  His ARPC Form 249-E shows the applicant completed 16 years, 0 months, and 21 days of qualifying service for retirement as of 1 October 1991.

   a.  The evidence of record shows he continued to serve in the USAR from 
1 October 1991 through 4 December 1997.  However, he did not earn a total of at least 50 creditable points during any these RYs in order for any of them to be qualifying years of service.

   b.  Thus, the applicant does have 7 years of creditable service in the USAR subsequent to his REFRAD on 30 September 1991.  However, he does not have any qualifying years (i.e., a RY with a total of 50 creditable points or more) during the period of service under review.  As such, the applicant actually requires an additional 8 years of qualifying USAR service in the RC to qualify for retired pay.

	c.  Although his ARPC Form 249-E does not show his initial service from January 1970 through January 1976, it also credits him with service from 1976 to 1980, when he had a break in service.  In any case, the key issue is that his last 8 years of qualifying service were not performed in a Reserve Component.

4.  There is no evidence of record that shows the applicant was notified or that he was eligible for retired pay at age 60.  

5.  Thus, there is insufficient evidence to support the applicant's request.

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)                                         AR20130010861



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ABCMR Record of Proceedings (cont)                                         AR20130010861



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