IN THE CASE OF:	  

		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20130020725 


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, active duty service credit equal to a 20-year Regular retirement.

2.  The applicant states:

	a.  He believes his records are in error because from 1992 to 1994 the Army placed him on home duty status.  On 8 November 1994, he was placed on the Temporary Disability Retired List (TDRL) until 4 September 1999.  On this date, he received his Certificate of Retirement.  In November 1994, he was placed on the TDRL with 19 years, 5 months, and 11 days of service.

	b.  If he had been allowed to complete his retirement contract to his expiration of term of service, he would have completed over 21 years of service.  He entered active duty on 28 May 1975 and was discharged on 4 September 1999, serving a total of 23 years in the Army.

	c.  He has been trying to get this problem corrected since 1994.  He was told before he started his out-processing in 1994 that he would receive a 20-year letter (properly known as a Notification of Eligibility for Retired Pay at Age 60).  This is the reason he agreed to be discharged from the Army.  He did not receive a 20-year letter.  It was months later after leaving the military that he realized he would not be receiving this letter.

	d.  He is unable to receive retired pay due to not having a 20-year letter.  He believes this error was caused by negligence at the out-processing office.  Over the years he has contacted the Department of Veterans Affairs, Defense Finance Accounting Service (DFAS), and the Army.  He has also consulted with his Congressman's office.  All of these services agreed that he should have been granted a 20-year letter under the "grandfather clause."

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Certificates of Retirement, dated 1994 and 1999
* orders for his separation processing
* orders placing him on the TDRL
* orders for TDRL physical examinations
* rebuttal of physical evaluation board findings
* orders removing him from the TDRL
* letter from DFAS to a Member of Congress, dated 17 October 2013

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 enlisted in the Regular Army on 28 May 1975.  He served as a fabric repair specialist and as a recruiter.

3.  On 8 November 1994, he was retired due to temporary physical disability and placed on the TDRL the following day.  He completed 19 years, 5 months, and 11 days of creditable active service.

4.  On 3 September 1999, he was removed from the TDRL and permanently retired based on physical disability rated at 30 percent.

5.  There is no evidence of record showing he completed 20 years of active duty service.

6.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 12, sets the policies and procedures for voluntary retirement of Soldiers because of length of service.  It states that a Soldier who has completed 20 years active Federal service and who has completed all required service obligations is eligible to retire.

7.  Title 10, U.S. Code, section 1202 states that upon determination that a member would be qualified for retirement, but for the fact that his disability is not determined to be of a permanent nature and stable, shall, if it also is determined that the disability may be of a permanent nature, place the member's name on the TDRL with retired pay.

8.  Army Regulation 135-180 (Army National Guard and Army Reserve – Qualifying Service for Retired Pay Nonregular Service), paragraph 2-3 (Notification of Retired Pay Eligibility), states that under Title 10, U.S. Code, section 1331(d), each Reserve Component Soldier who completes the service required (attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of his or her qualifying service as a Reserve Component Soldier) to be eligible for retired pay at age 60 under this regulation will be notified in writing within 1 year after he or she has completed that service.  This regulation also states an applicant must not be entitled to retired pay from the Armed Forces under any other provision of law.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends he was told he would receive a 20-year letter, he was not a Reserve Component Soldier and was not eligible for a 
20-year letter verifying completion of 20 qualifying years of Reserve service for retired pay at age 60.

2.  He was retired on 8 November 1994 by reason of temporary physical disability and he was placed on the TDRL effective 9 November 1994.  He began drawing Regular retired pay effective that date.  His removal from the TDRL in September 1999 was merely an administrative action based on a determination that he was permanently disabled with a rating of 30 percent.

3.  He implies his time on the TDRL should count toward years of service for his Regular retirement.  However, time spent on the TDRL is not active service and does not count for service credit for Regular retirement.

4.  His remaining contentions were carefully considered.  However, the evidence of record shows he completed 19 years, 5 months, and 11 days of creditable active service when he retired.  Regrettably, there is no basis for granting the applicant's request for active duty service credit equal to a 20-year Regular retirement.

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 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)                                         AR20130020725



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ABCMR Record of Proceedings (cont)                                         AR20130020725



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