BOARD DATE:	  9 September 2014

		DOCKET NUMBER:  AR20130021407 


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 correction of his record to show he is qualified for U.S. Army Reserve (USAR) retired pay at age 60.

2.  The applicant states his service contains a calculation error.  Additionally, he states, in effect:

	a.  He should have well over 20 qualifying years of service for retirement.  He also qualifies for retirement because he was involuntarily separated from the service between October 1992 and September 2000.  In March 2011, the Army Reserve Non-Regular Retirement Information Guide stated that members with more than 15 years but less than 20 years of service are eligible for retirement.

	b.  The Reserve Retired Pay Branch claims he served only 19 years and 9 months of creditable service for retirement at age 60.  He discovered that his active duty time during Desert Shield/Storm was not counted, which would have put him beyond the required 20-year minimum for retirement.  Following his release from active duty he was assigned to the Command Surgeon's Office, 94th Army Reserve Command and that service is also not included in his service calculation.

	c.  In July 2012, he discovered the error when he was trying to establish his active duty service for Department of the Army civilian employee retirement.



3.  The applicant provides – 

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for Desert Shield/Storm
* U.S. Army Human Resources Command (HRC) letter, dated 26 December 2012
* ARPC Form 249-E (Chronological Statement of Retirement Points)
* DD Form 108 (Application for Retired Pay), dated 15 March 2012 and
12 July 2012
* Certificate of Honorable Discharge from the Armed Forces of the United States, dated 18 January 1994
* DD Form 2656 (Data for Payment of Retired Personnel), dated 25 January 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 USAR in August 1969.  He completed
6 consecutive qualifying years of service and had a break in service from 1975 to 13 December 1979, enlisting in the USAR again on 14 December 1979.  He then completed 11 more consecutive qualifying years of service.  His ARPC Form 249-E shows his last qualifying year of service was retirement year ending (RYE) 13 December 1990.  

3.  His DD Form 214 shows he served on active duty from 21 November 1990 through 7 November 1991.  

4.  A DA Form 5248-R (Report of Unfavorable Information for Security Determination) shows the applicant's security clearance and collateral access was suspended, on 14 November 1991, because he was indicted by a Federal Grand Jury for weapons smuggling following Operation Desert Shield/Storm.  The flag remained in effect until the applicant was discharged because he had reached his expiration term of service (ETS) date.  The applicant's unit commander recommended revocation of his clearance after the investigation was completed and the indictment was issued.  

5.  A second endorsement, dated 12 January 1993, subject:  Erroneous Extension, shows the applicant could extend his enlistment 3 months at a time up to a total of 48 months while he was under investigation.  He was not eligible to reenlist.  

6.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) shows his flag was removed effective 28 December 1993 because his ETS was 28 December 1993.

7.  The applicant was issued an Honorable Discharge Certificate from the USAR, dated 18 January 1994.

8.  An HRC letter, dated 26 December 2012, that the applicant submitted with his application states he completed 17 years, 11 months, and 3 days of qualifying service for retirement.  He was also advised that he was ineligible to receive retired pay.  His application was being denied and his application packet was being returned.  It does not credit him with a qualifying year during RYE 
13 December 1991.  

9.  The ARPC Form 249-E, dated 12 July 2012, the applicant submitted shows he completed a total of 18 years of creditable service.  It does not credit him with a qualifying year during RYE 13 December 1991.

10.  There is no evidence that shows the applicant was issued as 15-year letter or a 20-year letter.  Neither is there any evidence that shows he was informed he had 19 years and 9 months of qualifying service toward a non-regular retirement.

11.  The Non-Regular Retirement Guide, dated 4 March 2011, paragraph 3-3, Early Qualification for Retired Pay, states – 

   a.  From 23 October 1992 through 30 September 2000 members of the Selected Reserve who completed more than 15 qualifying years of service but less than 20 and was involuntarily separated would be eligible for retired pay at age 60.

   b.  Members with Physical Disabilities not incurred in the line of duty.

   c.  Title 10, U.S. Code, section 12731b, provides that the Secretary concerned may treat a member with more than 15, but less than 20, years of creditable service toward a Reserve retirement, as having completed the requirements for a Reserve retirement.  This applies in the case of a member who is unfit for continued service solely due to a physical disability.  The physical disability may not be the result of willful neglect, or during a period of unauthorized absence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant believes he completed more than 20 qualifying years of service and he qualifies for a 15-year retirement because he was involuntarily separated.

2.  Whether or not some or all of the active service listed on the DD Form 214 was counted on the ARPC Form 249-E is not clear, but even if it was not that service would not give him 20 qualifying years of service for retirement but it might account for his being informed he had 19 years and 9 months of qualifying service.  

3.  He is not entitled to a 15-year retirement because he was not involuntarily separated; he was separated because of his ETS.

4.  There is no available information on the outcome of the indictment that would support a conclusion that he was unjustly deprived of an opportunity to reenlist.  Neither is there any evidence that he appealed the flag against him so that he could reenlist.  

5.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

6.  If the applicant believes he has sufficient years to give him 20 qualifying years of service he should provide that evidence (such as the DD Form 214) to the Commander, U.S. Army Human Resources Command, ATTN:  AHRC-PDR-H/Department 420, 1600 Spearhead Division Avenue, Fort Knox, KY  40122 and ask them to provide him an updated ARPC Form 249-E.

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)                                         AR20130021407



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ABCMR Record of Proceedings (cont)                                         AR20130021407



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