IN THE CASE OF:	  

		BOARD DATE:	  3 March 2015

		DOCKET NUMBER:  AR20140011308 


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 the following:

* placement on the Retired List
* personal appearance before the Board

2.  The applicant states, in effect, he is requesting placement on the Retired List at age 60.  He was not in an active status for discharge at age 60.  

3.  The applicant provides copies of the following:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) ending on 21 November 1968
* Expiration of Term of Service (ETS) memorandum
* Orders Number C-09-440250
* Retired Reserve certificate
* National Archives and Records Administration (NA) Form 13041 (Statement Service)
* Chronological Statement of Retirement Points
* Letter from the U.S. Army Reserve Personnel Command (AR-PERSCOM)
* Six letters from the U.S. Army Human Resources Command (HRC)
* Order Number D-05-711027.
* Honorable Discharge Certificate
* Air Force Board for Correction of Military Records (AFBCMR - Record of Proceedings (ROP)
* Letter from the Department of Veterans Affairs (VA)
* Information Paper for Enclosed Documents.
* Navy Reserve, Marines, and Air Force retired Reservists information
* Number of Military Retirees Retired as of 30 September 2013 and Receiving Retired Pay by Rank and Average Monthly Gross/Net$$ information paper
* article pertaining to his late father
* article entitled, "Reservists aid in air crash"
* Excerpts of Army Regulations (AR) 140-1 (Army Reserve - Mission, Organization, and Training), chapter 4
* Excerpts of AR 140-10 (Army Reserve - Assignments, Attachments, Details, and Transfers), chapter 6
* Excerpts of AR 600-1 (Personnel - General Officers Honorably Retired List)
* Excerpts of AR 25-50 (Information Management - Preparing and Managing Correspondence), paragraph 6-6c

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 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 the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant was born X June 1945.

3.  His military records show he was inducted into the Army of the United States (AUS) on 22 November 1966.  He was awarded military occupational specialty 13B (field artillery crewman).  He was honorably released from active duty on 21 November 1968 and was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  He was credited with completing 2 years of active service.

4.  Letter Orders Number 10-1435475, dated 18 October 1972, honorably discharged him from the USAR effective 21 November 1972.

5.  He reenlisted in the USAR on 9 October 1974 for 2 years.  He served continuously in the USAR through several reenlistments or extensions.  He was honorably discharged on 31 January 1980.  

6.  He reenlisted in the USAR on 22 August 1980 for 6 years and served continuously through several reenlistments or extensions.

7.  His records contain and he provided copies of the following:

   a.  An ETS memorandum, dated 9 June 1994, wherein he was advised that his ETS expired on 10 January 1993.  The records indicated he had accumulated a substantial number of years of service.  Under Army regulations which implemented the law regarding ETS, he had the option of selecting either a transfer to the Retired Reserve or a discharge.

   b.  Orders C-09-440250, dated 19 September 1994, assigning him to the Retired Reserve effective 19 September 1994, by reason of completion of 20 or more years of Reserve duty.

   c.  A Retired Reserve certificate dated 19 September 1994.

8.  He also provides copies of the following:

   a.  An NA Form 13041 dated 8 September 1995.

   b.  A Chronological Statement of Retirement Points, dated 18 November 1997 which shows the following:

* He served in the AUS from 22 November 1966 to 21 November 1968
* He served in the USAR from 22 November 1968 to 21 November 1972
* He had a break in service from 22 November 1972 to 8 October 1974
* He again served in the USAR from 9 October 1974 to 31 January 1980
* He had a break in service from 1 February to 21 August 1980
* He served in the USAR from 22 August 1980 to 21 August 1994
* He was credited with 17 years of qualifying service as of August 1994

   c.  A letter, dated 17 February 2005, wherein the AR-PERSCOM advised him that to be eligible for retired pay at age 60, under Title 10, USC, sections 12731-12737, a Reserve Soldier or former Reserve Soldier must have completed a minimum of 20 qualifying years of service, the last 8 years of which must have been in a Reserve Component (RC).


9.  He reached age 60 on X June 2005.

10.  He further provided copies of the following:

   a.  A letter, dated 19 September 2006, wherein HRC advised him that retirement at age 60 required that the Soldier had accumulated a minimum of 20 qualifying years before the 60th birthday.  His application for retirement was denied because he had accumulated 17 qualifying years out of over 25 served (emphasis added).

   b.  Orders Number D-05-711027, dated 18 May 2007, honorably discharging him from the USAR effective 17 May 2007, under the provisions of with            AR 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations).

   c.  An Honorable Discharge Certificate dated 17 May 2007.

   d.  Five letters, dated between May and September 2007, wherein HRC advised a Member of Congress of the following:

		(1)  The applicant was previously informed that retirement, not transfer to the Retired Reserve, was authorized by law for Soldiers who had completed 20 or more years of qualifying service (emphasis added).  The applicant was transferred to the Retired Reserve and remained in that mobilization category until he was required to be either retired or discharged at age 60.  

		(2)  As the applicant did not meet the requirements for retirement criteria of Title 10, USC, section 1223, he was discharged as prescribed by the Secretary of the Army policy stated in AR 140-10, chapter 7, for maximum age.

		(3)  The applicant was transferred from an active status to the Retired Reserve at his own request in 1994 as authorized under AR 140-10.  He was discharged in May 2007 as authorized by AR 135-178 for maximum age as he was not eligible for retirement.  They could not answer why other services had a category titled "honorary retiree."

   e.  An AFBCMR ROP, dated 10 July 2007, wherein that board denied an applicant's request for placement on the "Honorably Retired Reserve List" because effective 1 January 1998, the AF Reserve eliminated the Honorary Retired Reserve category.

   f.  A letter, dated 26 March 2014, which was provided to him for use in applying for benefits as a disabled veteran. 
   
g.  An Information Paper for Enclosed Documents factsheet, dated 19 June 2014, wherein he was advised what to provide in applying for correction of his records.

   h.  Navy Reserve, Marines, and Air Force retired Reservists information.

   i.  A Number of Military Retirees Retired as of 30 September 2013 and Receiving Retired Pay by Rank and Average Monthly Gross/Net$$ information paper.

   j.  An article about the honors bestowed upon his late father.

   k.  An article entitled, "Reservists aid in air crash" which pertained to Army Reservists serving with a transportation company in Alexandria, VA, assisting authorities with the January 1982 crash of an Air Florida flight into the icy Potomac River.

   l.  Excerpts of ARs 140-1, chapter 4; 140-10, chapter 6; 600-1; and 25-50, paragraph  6-6c.

11.  AR 140-10, in effect at the time, prescribed policies and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  The regulation stated in:

   a.  Paragraph 6-5 - Instructions for Soldiers applying for transfer from the Retired Reserve.

   b.  Paragraph 7-3 - Soldiers having 20 or more years of qualifying service would be removed when they reached the maximum age (age 60).

12.  AR 600-1, in effect at the time, established the Officer Honorary Retired List for the purpose of providing a measure of recognition for officers and former officers (emphasis added) of the AUS, not members of the Regular Army, who had served faithfully and well during national emergencies or for long periods.

13.  AR 25-50, in effect at the time, prescribed Department of the Army policies, procedures, and standard formats for preparing and processing Army correspondence.  Paragraph 6-6c of the regulation stated all personnel on the Officers Honorary Retired List would use "U.S. Army Retired (Hon)."

14.  AR 135-178, in effect at the time, set policies for the administrative separation of USAR Soldiers for a variety of reasons.
15.  AR 135-180 (ARNG and USAR Qualifying Service for Retired Pay Nonregular Service), in effect at the time, stated:

    a.  In order to be eligible for retired pay, an individual did not need to have a military status at the time of application for retired pay, but must had (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and (3) served the last 8 years of his/her qualifying service as a RC Soldier.  The requirement to serve the last 8 years in a RC status has since been amended to the last 6 years and currently it is zero years.

    b.  A 20-Year letter would be issued to RC Soldiers within 1 year after they had completed 20 years of qualifying service for retirement.

16.  Army Regulation 15-185, paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  With regard to the applicant's placement on the Retired List:

	a.  By law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for non-regular retired pay.  A qualifying year of service for nonregular retired pay is a full year during which a Regular or Reserve member is credited with a minimum of 50 retirement points.

   b.  The evidence shows the applicant was advised in June 1994 that his ETS had expired on 10 January 1993 and he had the option of selecting either a transfer to the Retired Reserve or a discharge.  He elected and he was transferred to the Retired Reserve on 18 September 1994.  His Chronological Statement of Retirement Points shows he was credited with 17 years of qualifying service as of 21 August 1994.  HRC advised him that he needed a minimum of 20 qualifying years of service.  His application for retirement (i.e., placement on the Retired List) was denied because he had accumulated 17 qualifying years of service out of over 25 served.

   c.  In accordance with AR 140-10, chapter 7, he was discharged from the USAR on 17 May 2007, for maximum age (age 60).  By law, he was required to be either retired or discharged at age 60.  Reserve Soldiers who transferred to the Retired Reserve retained their status as a member of the Reserve until the Soldier attained retirement at age 60 or was discharged.  

   d.  There is no evidence and he provided none to show he was erroneously or unjustly prevented from completing 20 qualifying years of service prior to his transfer to the Retired Reserve in 1994.  He did not meet the criteria for retirement at the time of his discharge in 2007 and he was discharged accordingly.  Therefore, he is not entitled to the requested relief.

   e.  It is noted that the ABCMR does not establish policy for the Navy, Marine Corps, or AF pertaining to Honorary Retired Lists.

2.  With regard to his request for a personal appearance before the Board, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case. 

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)                                         AR20140011308



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ABCMR Record of Proceedings (cont)                                         AR20140011308



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