BOARD DATE:	  14 May 2014

		DOCKET NUMBER:  AR20130014936 


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 her record to show she qualifies for a Reserve retirement at age 60.

2.  She states she disagrees with the creditable points earned as a result of her drill dates.  She adds that she believes she met the requirements to receive retirement pay benefits.

3.  She provides:

* ARPC Forms 249-2-E (Chronological Statement of Retirement Points)
* Defense Finance and Accounting Service Military Leave and Earnings Statements (LESs) 
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) and/or (Report of Separation from Active Duty)
* Orders 121-003, dated 21 March 1994
* Orders 1-2, dated 11 January 1991
* Orders 073-011, dated 21 December 1990
* Information Sheets on Retirement
* Application for Retired Pay Benefits Packet

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's records show she was born on 17 August 1953.  On
19 July 1982, after completing 6 years, 8 months, and 8 days of active duty service, she was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  

3.  On 2 December 1989, she was appointed as a Reserve commissioned officer. On 15 January 1991, she was ordered to active duty in support of Operation Desert Shield/Storm.  On 23 August 1991, she was honorably released from active duty and credited with completing 7 months and 9 days of active duty service this period.

4.  On 24 June 2003, she was notified that a Department of the Army Reserve Components (RC) Selection Board convened on 3 February to consider officers to the grade of major.  She was considered, but unfortunately she was not selected.  As a result of her second nonselection, she must be discharged.  Her established removal date was listed as not later than 1 December 2003, unless she was eligible for and requested transfer to the Retired Reserve.

5.  On 1 October 2003, she was honorably discharged from the USAR.

6.  The applicant's record is void of a 20-year letter.  Her record is also void of any evidence and she has not provided any evidence that shows she completed any service that was not previously accounted for on her Chronological Statements of Retirement Points

7.  She provides:

   a.  Orders 073-011, dated 21 December 1990, that show she was ordered to annual training (AT) for a period of 13 days plus allowable travel time.  The report date was listed as 29 December 1990.
   
   b.  Orders 1-2, dated 11 January 1991, that show she was mobilized with her unit for a period of 180 days with a report date of 15 January 1991.

	c.  Orders 121-003, dated 21 March 1994, that show she was ordered to AT for a period of 14 days plus allowable travel time.  The report date was listed as 
1 May 1994. 

	d.  Four LESs for the periods covered 1 September 1995, 29 September 1995, 20 March 1996, and  26 June 1996.  These LESs show she attended unit training assembly on 19 and 20 August 1995; 15, 16, and 17 August 1995; and 
9 March 1996, respectively.  Additionally, these LESs show she had 20 years of service, but not qualifying years for service.

	e.  ARPC Forms 249-2-E, dated 24 February 2000, 22 September 2000, and 21 September 2001, show the applicant was credited with 16 years, 8 months, and 8 days of qualifying service for non-regular service retirement.  Specifically, these statements show during the retirement year ending (RYE):

* 20 August 1976 – she earned 283 active duty points for a total of 283 retirement points and 9 months and 9 days of qualifying service for retirement
* 21 August 1976 – 20 August 1981 she earned 365 active duty points each year for a total of 5 years of qualifying service for retirement
* 21 August 1981 – 19 July 1982 she earned 333 active duty points for a total of 333 retirement points and 10 months and 29 days of qualifying service for retirement
* 20 July 1982 – 20 August 1982 she earned 1 membership point for a total of 1 retirement point
* 20 August 1983 – she earned 15 membership points for a total of
15 retirement points
* 20 August 1984 – she earned 15 membership points for a total of 
15 retirement points
* 20 August 1985 – she earned 15 membership points for a total of 
15 retirement points
* 20 August 1986 – she earned 46 inactive duty points, 15 membership points, and 14 active duty points for a total of 74 retirement points and 1 year of qualifying service for retirement
* 20 August 1987 – she earned 47 inactive duty points, 15 membership points, and 14 active duty points for a total of 74 retirement points and 1 year of qualifying service for retirement
* 20 August 1988 – she earned 38 inactive duty points, 15 membership points, and a total of 53 retirement points and 1 year of qualifying service for retirement
* 20 August 1989 – she earned 47 inactive duty points, 15 membership points, and 15 active duty points for a total of 75 retirement points and 1 year of qualifying service for retirement
* 20 August 1990 – she earned 42 inactive duty points, 15 membership points, and 16 active duty points for a total of 73 retirement points and 
1 year of qualifying service for retirement
* 20 August 1991 – she earned 12 inactive duty points, 15 membership points, and 217 active duty points for a total of 244 retirement points and 1 year of qualifying service for retirement
* 20 August 1992 – she earned 48 inactive duty points, 15 membership points, and 17 active duty points for a total of 77 retirement points and 
1 year of qualifying service for retirement
* 20 August 1993 – she earned 34 inactive duty points, 15 membership points, and 14 active duty points for a total of 63 retirement points and 
1 year of qualifying service for retirement
* 20 August 1994 – she earned 42 inactive duty points, 15 membership points, and 16 active duty points for a total of 73 retirement points and
1 year of qualifying service for retirement
* 20 August 1995 – she earned 35 inactive duty points, 15 membership points, and 14 active duty points for a total of 64 retirement points and
1 year of qualifying service for retirement
* 20 August 1996 – she earned 23 inactive duty points, 15 membership points for a total of 38 retirement points 

   f.  In a letter from the U.S. Army Human Resources Command (HRC), dated 
8 July 2013, the Chief, Retired Pay Branch replied to applicant's submission of a DD Form 2656 (Data for Payment of Retired Personnel).  HRC stated to be eligible for retired pay at age 60, under Title 10, U.S. Code, section 12731-12737, a Reserve Soldier or former Reserve Soldier must have completed a minimum of 20 qualifying years of service, the last 8 years of which must have been in an RC.  An audit of the applicant's records show that she completed 16 years, 8 months, and 8 days of qualifying service for retirement as reflected on her ARPC Form 249-2-E, dated 5 July 2012.

8.  Title 10, U.S. Code, sections 12731-12737 authorize retired pay for RC military service.  To be eligible for retired pay under this law, a Reserve Soldier, upon attaining age 60, must have completed a minimum of 20 qualifying years.  After 1 July 1949, a qualifying year is defined as a year in which at least 50 retirement points are earned.

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


	a.  Paragraph 2-1 stated 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 6 years of his qualifying service as a RC Soldier.

	b.  Paragraph 2-8 describes qualifying service as service performed in an active status in a RC 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.

	c.  Paragraph 2-10 states in determining the years for percentage purposes, credit of 1 day will be given for each point as follows:

* One point for each day of active duty
* Fifteen points for each year of membership in an active status in a RC
* One point for each authorized participation in drills or periods of instruction which conform to the requirements prescribed by the Secretary of the Army
* Not more than 60 points per year, including membership points, will be credited for inactive duty training in any one retirement year

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her ARPC Form 249-2-E is incorrect and that she met the requirements to receive a 20-year non-regular retirement.  

2.  The evidence of record shows that during the RYE 20 August 1991, she received 244 retirement points and 1 year of qualifying service for retirement which appears to include 13 days of AT in January 1991 and the 180 days she was mobilized.  During the RYE 20 August 1994, she received 73 retirement points and 1 year of qualifying service for retirement which appears to include her 14 days of AT in May 1994.  Her LESs show she attended unit training assembly five times in the latter part of August 1995 which also appear to be included in the RYE 20 August 1996 when she earned 38 retirement points.  

3.  As specified above, computation of service for the purpose of a non-regular retirement is computed based on 1 point for each day of active duty service and one point for each authorized drill or periods of instruction.  It appears that her unit training time, mobilization orders, active duty time as recorded on her 
DD Forms 214 were all accounted for on her Chronological Statement of Retirement Points.  There is no evidence and she has not provided any to prove otherwise.  

4.  To be eligible for retired pay based on non-regular service, an individual must have attained the age of 60, completed a minimum of 20 years of qualifying service, and served the last 6 years of his or her qualifying service as a RC Soldier.  A qualifying year is defined as a year of service during which a Reservist earns at least 50 retirement points.  The applicant's records show she did not complete 20 years of qualifying service for entitlement to retired pay at age 60.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20130014936





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130014936



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1