IN THE CASE OF: 

		BOARD DATE:	    8 July 2014

		DOCKET NUMBER:  AR20130017273 


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 that he be granted 730 active duty points for the period from 2 May 1988 through 1 May 1990.

2.  The applicant states:

   a.  when he was released from active duty under the 1988 Reduction in Force (RIF) Early Transition Program, he transferred directly to the U.S. Army Reserve (USAR);
   
   b.  the USAR transfer demonstrates his desire to remain on active duty and meets the requirement of an "extended enlistment," thereby warranting award of 730 active duty points for the period from 2 May 1988 through 1 May 1990;
   
   c.  on 4 January 2008, he transferred from the USAR Individual Ready Reserve (IRR) to the Active Guard Reserve (AGR) and upon receiving his new Officer Record Brief was told he had 289 months (24 plus years) of Active Federal Service (AFS);
   
   d.  he was told that a class action law suit amended Title 10, United States Code (USC), section 1141 to include an extension of eligibility under the RIF to 30 September 1990.  Therefore, the change in the law makes his service between 2 May 1988 and 1 May 1990 count as AFS; and
   
   e.  over the last four years, all of his qualifying time has been erased from his records.
3.  The applicant provides copies of a 17 March 1988 DD Form 214 (Certificate of Release or Discharge from Active Duty), a 3 July 2008 Chronological Statement of Retirement Points (RPAS), an 11 July 2008 Officer Record Brief, and two partial citations of regulations.

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.  On 12 April 1984, the applicant enlisted for 6 years in the USAR under the Delayed Entry Program (DEP).  He then enlisted in the Regular Army on 2 May 1984 and served continuously on active duty through 17 March 1988.  He was honorably released from active duty due to a reduction in force and transferred to the USAR to complete his period of obligated service.  

3.  His DD Form 214 shows he served 3 years, 10 months, and 16 days of creditable active duty service with 1 month and 28 days of inactive service under the DEP.  

4.  The applicant then enlisted in the Army National Guard (ARNG) on 25 April 1988.  He was discharged on 24 April 1990 upon his expiration of his term of service.  His National Guard Bureau (NGB) Form 22 shows 2 years of net service this period with 1 month and 8 days of prior USAR service and 3 years, 11 months, and 6 days of prior AFS.

5.  The applicant had a 4 and a half year break in service before again enlisting in the ARNG.

6.  He served in an ARNG enlisted status for two years before receiving an ARNG commission.  In 1999, he transferred to the USAR and entered the AGR on 23 September 2007. 

7.  A 17 June 2013 DD Form 1506 (Statement of Service – for Computation of Length of Service for Pay Purposes) shows he had 13 years, 3 months, and 23 days of AFS with 24 years, 9 months, and 8 days of creditable service for longevity purposes.   

8.  On 7 November 2013, his RPAS statement shows his service as follows:

* 20 days under the DEP 
* 3 years, 10 months, and 16 day of Regular Army active duty 
* 1 month and 7 days of USAR (retirement qualifying) service 
* 2 qualifying retirement years of ARNG enlisted service 
* 4 years, 4 months, and 28 days of no military service 
* 4 qualifying retirement years of ARNG commissioned service 
* 1 qualifying retirement year of USAR commissioned service
* 5 nonqualifying retirement years wherein he received membership points only
* 2 qualifying retirement years of USAR commissioned service 
* 6 qualifying retirement years of AGR commissioned service
* Cumulative 19 years and 1 day of qualifying service for nonregular retirement (at age 60)

9.  The citations provided by the applicant are incomplete and do not address the issue of entitlement to Reserve retirement points.

10.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states that active duty is defined as full-time duty in the active military service of the United States.  It includes but is not limited to the following: 

* Actual duty on the active list 
* Full-time training duty
* Annual training duty
* Attendance at a school designated as a service school by law or by the Secretary of the military department concerned while in active military service
* Full-time duty performed by a member of the following:

* Army National Guard of the United States
* Army and Air National Guard under 32 USC, sections 316 and 
502 - 505  
* Active duty as a reservist ordered to active duty or active duty for training (with his or her consent) without pay under competent orders requiring performance of such duty
It excludes the following as not creditable as qualifying service, pertinent to this application:

* Unassigned Reserve
* Inactive Reserve
* Inactive Status List of the Standby Reserve
* Inactive National Guard Reserve

11.  Title 10, USC, section 1331 grants Soldiers and former Reserve component Soldiers retired pay after completion of 20 or more years of qualifying service and upon attaining age 60. 

12.  Title 10, USC, section 1141 defines involuntary separation and states a member of the armed forces shall be considered involuntarily separated who was on active duty or full-time National Guard duty on 30 September 1990, or after 
29 November 1993 who is involuntarily discharged under other than adverse conditions.  

DISCUSSION AND CONCLUSIONS:

1.  His administrative separation on 17 March 1988 was accomplished in compliance with applicable regulations.  His transfer to the USAR was to complete his period of obligated service, as such it was mandatory not voluntary.  

2.  As he was discharged in April 1990 based upon his expiration of his term of service, his argument that a change of law is applicable to him for this period of service is moot.  Title 10, USC, Section 1141 does not apply to him.

3.  His June 2013 DA Form 1506 statement shows 13 years, 3 months, and 23 days of AFS while his RPAS shows 19 years and 1 day of qualifying service toward a Reserve retirement or nonregular retirement at age 60.  For longevity purposes he has 24 years, 9 months, and 8 days creditable for military pay.

4.  In order to be credited with active duty retirement points for the period in question, the applicant would have to have served on full time active duty in either the ARNG or USAR during this period.  There is not now nor has there ever been a provision to grant active duty retirement points for periods of service for which no active duty service was rendered.  






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)                                         AR20130017273



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130017273



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1