IN THE CASE OF:	  

		BOARD DATE:	    5 June 2014

		DOCKET NUMBER:  AR20130016521 


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 is entitled to a 20-year nonregular (Reserve) retirement.

2.  He states his records were not in error, but he was unable to retire due to hardship.  He explains that his wife had a problem when he returned from being deployed in Iraq and she threatened to divorce him if he deployed again.  He adds that based on her threat, he did not reenlist and he was discharged in February 2003.  At the time of his discharge, he had over 21 years of service in the U.S. Army Reserve (USAR) and the Regular Army (RA).  He offers that he was unaware of the requirement to serve the last 8 years (currently 6 years) in a Reserve Component to qualify for a nonregular retirement.  

3.  He provides his self-authored statement, Commonwealth of Kentucky Decree of Dissolution, and an Information Paper for Enclosed Documents.

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 12 January 1953.

3.  On 21 February 1975, he enlisted in the USAR.  

4.  On 28 January 1987, he enlisted in the RA.  He served on active duty for 
7 years, 6 months, and 19 days and was honorably discharged on 7 August 1994.  

5.  On 25 September 2000, he enlisted in the USAR.

6.  The applicant was divorced on 27 April 2001.

7.  Headquarters 100th Division, Orders 03-041-00005, dated 10 February 2003, reassigned the applicant to the USAR Control Group (Reinforcement) effective 14 February 2003 for "Weight Control Failure" under the provisions of Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers), paragraph 4-16.  

8.  On 18 February 2003, he was honorably discharged from the USAR.

9.  His Chronological Statement of Retirement Points, dated 29 May 2014, shows he was credited with 21 years, 3 months, and 19 days of qualifying service for a nonregular (Reserve) retirement.  This statement further shows:

	a.  During the retirement year beginning on 21 February 1975 to the retirement year ending (RYE) 20 February 1986, he earned 1 qualifying year each year for a total of 11 years of qualifying service for retirement.

	b.  During the retirement year beginning on 21 February 1986 to the RYE
27 January 1987, he earned 34 inactive duty points, 14 membership points and he was credited with 11 months and 7 days of qualifying service for retirement

   c.  During the retirement year beginning on 28 January 1987 to the RYE 
20 February 1987, he earned 24 active duty points and he was credited with 24 days of qualifying service for retirement.
   
   d.  During the retirement year beginning on 21 February 1987 to the RYE
20 February 1994, he earned 365 active duty points each year for a total of 
7 years of qualifying service for retirement.
   e.  During the retirement year beginning on 21 February 1994 to the RYE
7 June 1994, he earned 107 active duty points and he was credited with 3 months and 18 days of qualifying service for retirement.
   
   f.  During the retirement year beginning on 8 June 1994 to the RYE 
8 August 1994 he earned 3 membership points.
   
   g.  During the retirement year beginning on 9 August 1994 to the RYE
24 September 2000 he had a break in service.

   h.  During the retirement year beginning on 25 September 2000 to the RYE
24 September 2002 he earned 1 qualifying year each year for a total of 2 years of qualifying service for retirement.

   i.  During the retirement year beginning on 25 September 2002 to the RYE
17 February 2003 he earned 6 membership points.

   j.  During the retirement year beginning on 18 February 2003 to the RYE
18 February 2003 he was discharged and earned zero points.

10.  Army Regulation 140-10, paragraph 4-16, provides for the involuntary reassignment for Soldiers who fail to maintain Army body fat standards.  A Soldier will be reassigned to the Individual Ready Reserve (IRR) for failure to meet the Army body fat standards per Army Regulation 600–9 (Army Weight Control Program) when it is determined that the Soldier is not qualified for further Troop Program Unit  or Individual Mobilization Augmentation service and meets all of the following conditions:

* Has completed initial entry training and has been awarded a military occupational specialty and is not within 3 months of expiration term of service
* Is not diagnosed with a medical condition that precludes or interferes with weight control
* The Soldier fails to meet the body fat standards per Army Regulation
600–9 and the sole reason for the reassignment to the IRR is failure to meet those standards

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence and the applicant did not provide any to show he was unable to retire due to hardship.  The evidence of record shows that he was reassigned to the USAR Control Group (Reinforcement) on 14 February 2003 for Weight Control Failure and was subsequently discharged on 18 February 2003.

2.  The evidence of record further shows that although there appears to be a few inconsistencies with his retirement year beginning and ending dates, he had over 21 years of qualify service for a nonregular Reserve retirement.  He never questioned the lack of a notification of eligibility for retired pay (20-year letter) at the time.  If he had learned he needed an additional 4 years of Reserve service, he would have been subject to deployment during these years, a fact he admits he did not desire.

3.  He did not serve the last 6 years of his qualifying years as a Reserve Component Soldier.  Therefore, he is not entitled to retired pay at age 60.

4.  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)                                         AR20130016521





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ABCMR Record of Proceedings (cont)                                         AR20130016521



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