IN THE CASE OF:	  

		BOARD DATE:	  10 March 2015

		DOCKET NUMBER:  AR20140010276 


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, a non-regular Reserve retirement and receipt of retired pay effective 4 August 2010.

2.  He states he compiled 3,429 retirement points, more than triple the 1,000 points needed for a retirement.  He adds that he was never discharged from the U.S. Army Reserve (USAR).  He states:

* He received orders asking him if he wanted an honorable discharge or an honorable retirement
* He was reassigned to the Retired Reserve retroactively to 3 September 1993
* He solicited via email for active duty recall on six occasions
* He received an AHRC Form 4001 (Important Information Concerning Your Retired Pay Application) inviting him to apply for Reserve retired pay
* After receipt of notification of non-eligibility for retired pay, he requested to be returned on active duty (AD), but was denied
* He was treated as a gray area Reserve retiree until his 60th birthday; therefore, he is entitled to receive Reserve retired pay 

3.  He provides:

* Self-authored statement
* AHRC Form 4001
* Letter, dated 20 December 2010
* U.S. Army Human Resources Command (HRC), letter, dated 21 April 2011
* Manpower and Reserve Affairs letter, dated 4 June 2012
* Memorandum, Subject:  Options Upon Non-selection for Promotion After Second Consideration, dated 18 August 1993
* Numerous emails
* Letter, Subject:  Retirement Points Accounting System (RPAS)
* Certificate of Retirement, dated 3 September 1993
* Orders C-11-342228, dated 10 Nov 1993
* Orders F-09-029187, dated 18 September 1995

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.  After having prior enlisted service first in the U.S. Air Force and later in the Air Force Reserve, the applicant was commissioned as a Reserve officer on 18 April 1979.  His date of birth is listed as 4 August 1950.

3.  The applicant's AHRC Form 249-E (Chronological Statement of Retirement Points) shows he was credited with 16 years, 11 months, and 24 days of qualifying service for a non-regular retirement with 3,429 of total creditable points.  This form also shows:

   a.  His retirement year beginning (RYB) date was listed as 10 July 1969 and his retirement year ending (RYE) date was listed 1 year later, i.e., 9 July, of each subsequent year until his break in service and subsequent commission on 
18 April 1979.  During this period, he was credited with 2 years, 7 months, and
7 days of qualifying service for a non-regular retirement.

   b.  During the RYB 18 April 1979 and RYE 17 April 1993, he was credited with 14 years of qualifying service for a non-regular retirement.
   
   c.  During the RYB 18 April 1993 and RYE 3 September 1993, he was credited with 4 months and 17 days of qualifying service for a non-regular retirement.
   
   d.  During the RYB 4 September 1993 and RYE 27 September 1993, his status was listed as Retired.

4.  The HRC Integrated Web Services, of the applicant's official military personnel file (OMPF), provides a transaction history and/or information requested by the applicant.  The "Remarks" section of this site shows information pertaining to his retirement on:

* 21 May 2008, his Retirement Points Accounting System was updated from 1 credible year of service to 16 years of credible service
* 22 December 2010, he called concerning the address to mail his retirement packet to
* 3 January 2011 and 8 April 2011, he requested HRC address by email and phone, respectively, to mail his retirement packet
* 22 April 2011, his packet was returned because his military records showed he had only completed 16 years, 11 months, and 24 days of qualifying service for retirement
* 26 April 2011, he was denied retired pay benefits due to an audit showing he was not eligible for retired pay at age 60 
* 29 April 2011, he was informed again that he was not eligible for retired pay at age 60

5.  The applicant provides:

   a.  A Certificate of Retirement, dated 3 September 1993, that stated he was retired from the U.S. Army on 3 September 1993.

	b.  Orders C-11-342228, dated 10 November 1993, released him from Control Group Reinforcement for non-selection for promotion and reassigned him to the Retired Reserve, effective 3 September 1993.

	c.  Orders F-09-029187, dated 18 September 1995, which stated that "effective upon declaration of full mobilization, you are ordered to active duty from retired status."

	d.  Numerous emails concerning his interest in voluntary retiree recall.

   e.  In a letter from HRC, dated 21 April 2011, the Chief, Retired Pay Branch explained that the applicant was not eligible for retired pay at age 60.  She stated that an audit of his military records shows he completed 16 years, 11 months, and 24 days of qualifying service for retirement.

6.  In the processing of this case, an advisory opinion was obtained from the Chief, Reserve Component Retirement Branch, HRC. 

   a.  She quotes Title 10, U.S. Code, section 1223 and states to be eligible for retired pay under that law, a Reserve Soldier or former Reserve Soldier, upon attaining 60 years of age, must have completed a minimum of 20 qualifying years of service.  After 1 July 1949, a qualifying year is defined as having earned at least 50 retirement points.  The law authorizing retired pay based on service in a Reserve Component does not support approval of pay until all requirements are met.

   b.  Additionally, she states Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) governs transfer to the Retired Reserves and provides eight instances which a Soldier may transferred to the Retired Reserve.  This does not mean he/is eligible to receive retired pay unless he meets the requirement in Title 10.  The Soldier is eligible to keep his retired identification card (ID) until age 60. 
   
   c.  Based on the applicant's records, he completed 10 or more years of active Federal commissioned service and met the requirement to be placed in the Retired Reserves.  For retirement purposes, he only completed 16 years, 
11 months, and 24 days of qualifying service.  He does not meet the requirements to receive retired pay at age 60 or to keep his ID card.

7.  The applicant was provided a copy of the advisory opinion in order to have the opportunity to respond; however, a response was not received.

8.  Department of Veterans Affairs define "Gray Area Retiree" as a member of the National Guard or the Reserve who have not yet reached age 60 for retirement (usually after at least 20 years of service); however, they are not entitled to certain Federal benefits, including health care.

9.  Title 10, U.S. Code, section 1223 (Retired Pay for Non-regular Service) states, in pertinent part, that a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person (1) has attained the age of 60; (2) has performed at least 20 years of service; and (3) performed the last eight years of qualifying service while a member of any category in the armed forces.


10.  Army Regulation 135-180 (Army National Guard and Army Reserve – Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing granting retired pay to Soldiers and former Reserve Component Soldiers.  Paragraph 2-8 describes qualifying service as service performed in an active status in a Reserve Component or in active Federal service.  After 30 June 1949, a Reserve Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  When a person is in an active status for a period of less than a full retirement year, a minimum number of retirement points must be earned to have that period credited as qualifying service.

11.  Army Regulation 140-10 states that eligible Soldiers must request transfer if they:

* Are entitled to receive retired pay from the U.S. armed forces because of prior military service
* Have completed a total of 20 years of active or inactive service in the 
U.S. armed forces 
* Are medically disqualified for AD resulting from a service-connected disability 
* Were appointed based on the condition the Soldier immediately apply for transfer to the Retired Reserve 
* Reached the age of 37 and completed a minimum of 8 years of qualifying Federal service. 
* Reached the age of 37, completed a minimum of 8 years of qualifying Federal service and served at least 6 months of AD in time of war or national emergency 
* Completed 10 or more years of active Federal commissioned service 
* Are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on AD, regardless of the total years of service completed. 

DISCUSSION AND CONCLUSIONS:

1.  HRC conducted an audit of the applicant's records and verified on several occasions that he had only completed 16 years, 11 months, and 24 days of qualifying service for retirement.

2.  As stated in Title 10, U.S. Code, section 1223 to qualify for a non-regular retirement and retired pay at 60, a person must have performed at least 20 years of qualifying service.  Therefore, even if he was credited with 3,429 of total credible points it is not sufficient justification to warrant a 20-year Reserve retirement since the requirement by regulation is to receive 50 retirement points each retirement year to have that year credited as qualifying retirement year. Likewise the fact that he was considered as a "gray area retiree" is also not sufficient evidence to conclude that he is entitled to a non-regular Reserve retirement and receipt of retired pay.

3.  Based on the foregoing, there is no basis for granting the applicant's 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)                                         AR20140010276





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ABCMR Record of Proceedings (cont)                                         AR20140010276



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