IN THE CASE OF:  	  

		BOARD DATE:  28 October 2014	  

		DOCKET NUMBER:  AR20140002528 


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, the widow of a deceased former service member (FSM), requests, in effect, correction of the FSM's military records to show he completed 20 qualifying years of service for Reserve retired pay.

2.  The applicant states:

* the total years of service were not added correctly for retirement
* 1965-1995 equals 20+ years
 
3.  The applicant provides:

* FSM's U.S. Army Human Resources Command (HRC) Chronological Statement of Retirement Points
* FSM's DD Form 2656-7 (Verification for Survivor Annuity)
* FSM's death certificate
* their marriage license
* her social security card
* her child's birth certificate
* FSM's Honorable Discharge Certificate
* FSM's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 7 July 1968
* FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 9 October 1981
* her Internal Revenue Service Form W-4P (Withholding Certificate for Pension or Annuity Payments)

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 FSM was born in March 1946.  He enlisted in the Regular Army on 13 July 1965 for 3 years.  On 7 July 1968, he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) to complete his remaining service obligation.  He was honorably discharged from the USAR on 12 July 1971.

3.  He enlisted in the USAR again on 16 December 1974.  He was honorably discharged from the USAR on 9 October 1978 for immediate enlistment in the Regular Army.  He enlisted in the Regular Army on 10 October 1978 for 3 years.  On 9 October 1981, he was honorably discharged by reason of completion of his required active duty service.

4.  He enlisted in the USAR the following day on 10 October 1981.  He was honorably discharged from the USAR on 12 December 1995.

5.  The FSM died on 5 February 2009.

6.  His Chronological Statement of Retirement Points, dated 27 January 2014, shows he completed 9 years of qualifying service for retired pay at age 60.

7.  There is no evidence the FSM completed 20 years of qualifying service for retired pay purposes.

8.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers.  At the time of the FSM's USAR service, it stated that an annual statement of retirement points would be prepared for all Soldiers regardless of the number of points awarded.  The purpose of the statement was to provide a permanent record of the total retirement points a Soldier earned during a retirement year; to tell the Soldier whether he or she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status, and to give the Soldier an opportunity to request correction of errors in the statement.

9.  Army Regulation 135-180 (Army National Guard and USAR – Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing granting retired pay to Soldiers and former Reserve Component Soldiers.  Paragraph 2-8 states a Reserve Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  Only Soldiers assigned to an active status in a Reserve Component or individuals in active Federal service are authorized to earn retirement point credit.

10.  Title 10, U.S. Code, sections 12731 through 12740, currently 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.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the FSM completed 9 years of qualifying service for Reserve retired pay.  By law, a Reserve Soldier must complete a minimum of 20 qualifying years of service (minimum of 50 retirement points each retirement year) to be eligible for retired pay at age 60.

2.  At the time of the applicant's USAR service, the U.S. Army Reserve Personnel Center (ARPERCEN, currently known as HRC) sent annual statements of retirement points to all Reserve Soldiers regardless of the number of points awarded.  When the FSM received his annual statements he should have seen that he had only 9 qualifying years for retired pay at age 60.  He had an obligation to himself at that time to query ARPERCEN if he believed any of the statements was incorrect.

3.  Since there is no evidence at this time that the FSM completed a minimum of 20 qualifying years of service (years in which the FSM earned a minimum of 50 retirement points), there is no basis for granting the applicant's request to show the FSM completed 20 qualifying years of service for Reserve retired pay at age 60.



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)                                         AR20140002528



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ABCMR Record of Proceedings (cont)                                         AR20140002528



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