IN THE CASE OF:	   

		BOARD DATE:	  27 May 2014

		DOCKET NUMBER:  AR20130014949 


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:

	a.  correction of his military records to show he completed 20 qualifying years of service for Reserve retired pay.

	b.  his rank be corrected to show sergeant first class (SFC). 

2.  The applicant states:

* his unit did not inform him he did not have enough time for a Reserve retirement (20 years of service) when he got out of the U.S. Army Reserve (USAR) in 1989
* his rank is incorrect; it should be SFC

3.  In a letter, dated 6 August 2013, he states:

* he started in the U.S. Navy in 1968
* after his service in the Navy, he joined the Army National Guard (ARNG)
* then he joined the USAR
* he was getting pay for a staff sergeant (SSG) with 20 years
* if he had known he was short 3 years he would not have retired in 1989
* his goal was to retire with 20 years in the USAR
* he retired as an SFC, not a SSG


4.  The applicant provides:

* correspondence received from a Member of Congress
* U.S. Army Human Resources Command (HRC) Chronological Statement of Retirement Points
* Leave and Earnings Statement
* Service personnel records
* USAR Honorable Discharge Certificate, dated 29 August 1989
* Certificates of achievement

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 April 1948.  Having prior active service in the U.S. Navy from 1 July 1968 to 29 April 1970 and inactive service in the U.S. Navy Reserve from 30 April 1970 to 28 February 1974, he enlisted in the ARNG on   13 March 1974.  He was honorably discharged from the ARNG on 12 March 1976.  He enlisted in the USAR on 21 April 1976.   

3.  Item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he was promoted as a SSG effective 
15 April 1981.  

4.  He was honorably discharged from the USAR in the rank of SSG on 
29 August 1989.

5.  There is no evidence which shows he was promoted to SFC prior to his discharge from the USAR.

6.  There is also no evidence that shows the applicant completed 20 years of qualifying service for retired pay purposes.

7.  His HRC Chronological Statement of Retirement Points, dated 11 July 2013, shows he completed 17 years, 2 months, and 7 days of qualifying service for retirement.

8.  He provides a letter, dated 15 July 2013, from HRC to a Member of Congress which states he is not eligible for Reserve retired pay because he only completed 17 years, 2 months, and 7 days of qualifying service. 	 

9.  Army Regulation 140-185 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.  At the time of the applicant’s USAR service, it provided that an annual Statement of Retired Points would be prepared for all Soldiers regardless of the number of points awarded.  The purpose of the statement was to give a permanent record of the total retirement points a Soldier earned during a retirement year; 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.

10.  Army Regulation 135-180 (Army National Guard and USAR – Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing granting retired pay to Soldiers and former Reserve Component Soldiers.  Paragraph 2-8 states a Reserve Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  Only Soldiers assigned to an active status in a Reserve Component or individuals in active Federal service are authorized to earn retirement point credit.

11.  Title 10, U.S. Code, sections 12731 through 12740, currently authorize retired pay for Reserve Component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant completed 17 years, 2 months, and 7 days of qualifying service for Reserve retired pay.  By law, a Reserve Soldier must complete a minimum of 20 qualifying years of service (minimum of 50 retirement points each retirement year) to be eligible for retired pay.  

2.  At the time of the applicant’s USAR service, the U.S. Army Reserve Personnel Center (ARPERCEN, currently HRC) sent annual statements of retirement points to all Reserve Soldiers regardless of the number of points awarded.  When the applicant received his annual statements he should have seen that he had only about 17 qualifying years for retired pay.  He had an obligation to himself at that time to query ARPERCEN if he believe the statement was incorrect.  

3.  If the information on the HRC Chronological Statement of Retirement Points is incorrect or incomplete, the applicant should provide HRC with documentation to show the correct number of points creditable due him.

4.  However, since there is no evidence at this time that he completed 20 qualifying years of service, there is no basis for granting the applicant's request to show he completed 20 qualifying years of service for Reserve retired pay.

5.  Although he contends he retired as an SFC, there is no evidence of record and he provides no evidence which shows he was promoted to SFC.  Therefore, there is insufficient evidence on which to amend his rank.

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)                                         AR20130014949





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ABCMR Record of Proceedings (cont)                                         AR20130014949



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