BOARD DATE:	   26 August 2014

		DOCKET NUMBER:  AR20130018522 


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, that she be credited with 20 qualifying years of service for Reserve retirement pay.  

2.  The applicant states she was told by Colonel (now retired Brigadier General) LJ that she would have enough time for all benefits should she join the Delaware Army National Guard (DEARNG) and she feels it was an injustice to use her age to deny her promotion to lieutenant colonel (LTC).  She has been trying to receive help with this matter for the past 20 years to no avail.

3.  The applicant provides a wide-array of personnel documents that were generated throughout her military service.

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 8 April 1928.  She served in the Army of the United States (AUS) from 17 November 1948 to 28 September 1949, a period of 10 months and 12 days, after which she was honorably discharged in the rank of sergeant in order to accept a commission as a second lieutenant (2LT).

3.  On 29 September 1949, she was commissioned as a 2LT in the AUS.  She served on active duty from 29 September 1949 to 11 September 1954, a period of 4 years, 11 months, and 13 days.  On 11 September 1954, she was honorably released from active duty and transferred to the U.S. Army Reserve (USAR).

4.  The evidence shows the applicant was honorably discharged from the USAR on 26 February 1965 in the rank of captain.  It appears she had no military status until she enlisted in the DEARNG on 18 January 1975.  She served as an enlisted member of the DEARNG from 18 January 1975 to 29 October 1978, a period of 3 years, 9 months, and 11 days.

5.  On 30 October 1978, the applicant was appointed to the rank of major (MAJ) in the DEARNG.  The evidence shows she attended the Defense Equal Opportunity Management Institute while on active duty from 13 May to 10 November 1979, a period of 5 months and 29 days.

6.  Her record contains a memorandum and endorsements dated September 1980, pertaining to her Notification of Eligibility for Retired Pay.  It appears the USAR Personnel Center was unable to verify the applicant's USAR service from 24 September 1952 to 26 February 1965 with retirement points. 

7.  The applicant's record contains Orders 13-1, issued by Headquarters, DEARNG, dated 22 January 1981, which show the applicant resigned from the ARNG in the rank of MAJ, effective 3 February 1981, at 52 years, 9 months, and 27 days of age.  She was transferred to the USAR Control Group (Retired).

8.  On 4 February 1981, the applicant was recalled to active duty from retired status for a 2-year commitment with assignment to the Office of the Deputy for Equal Opportunity.

9.  On 15 February 1983, the applicant was honorably released from active duty and reverted to the retired list after completing a period of 2 years and 12 days of creditable active service.



10.  The applicant's record contains a letter from the Chief, Retirement Services, dated 1 July 1986, informing her that her records show she completed 14 years, 11 months, and 29 days of creditable service for retirement as of    
15 February 1983.

11.  The applicant provides a wide-array of military personnel records that were generated throughout her service which attest to her exceptional performance, leadership, and intelligence.  She further provides a DNG Form 61 (Statement of Service), issued by the Director, Personnel/Administration, DEARNG, dated 
21 April 1981, that shows she had 22 years, 3 months, and 20 days of total creditable (not qualifying) service.  On 28 March 2001, the U.S. Army Reserve Personnel Command informed the applicant’s member of Congress that she had completed 17 years of qualifying years of service for retirement.

12.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), in pertinent part, provides that USAR officers in the ranks of LTC and below who attain maximum service will be removed from active status.  Unless granted a waiver, they will be discharged or, if eligible and the Soldier applies, be transferred to the Retired Reserve on the earlier of the following dates and that the actual removal date will be 30 days after:

   a.  they complete 28 years of commissioned service if under the age of 25 at initial appointment; or

   b.  their 53rd birthday if age 25 or older at the initial appointment.
   
13.  Sections 12731 through 12738 of Title 10, U.S.C., 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.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.  The term "good years" is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that she be credited with 20 qualifying years of service for Reserve retirement pay was carefully considered and determined to lack merit.  

2.  While some documents indicate the applicant had over 20 years of creditable service, on 28 March 2001 the U.S. Army Reserve Personnel Command informed the applicant’s member of Congress that she had completed only 17 years of qualifying years of service for retirement.

3.  The applicant provides and her record contains insufficient evidence to substantiate her contention that she earned at least 20 qualifying years of service for retirement.  Unfortunately, based on the evidence presented, there is insufficient evidence to show the applicant is entitled to receive retirement pay at age 60.

4.  In view of the foregoing, she is not entitled to the 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)                                         AR20130018522



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ABCMR Record of Proceedings (cont)                                         AR20130018522



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