IN THE CASE OF:	   

		BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20140018049 


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 her retirement points and records to show she completed 20 qualifying years of service toward non-regular retirement. 

2.  The applicant states she completed 20 good years. She was denied retirement because her AHRC Form 249-E (Chronological Statement of Retirement Points) was not correct.  She has proof that she completed 20 years of service; however, she was told that she only has 17 years, 7 months, and
5 days of qualifying service. 

3.  The applicant provides: 

* AHRC Form 249-2-E, dated 8 September 1998
* Leave and Earnings Statements 
* Texas driver license
* Department of Veterans Affairs (VA) card
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* U.S. Army Reserve (USAR) discharge orders
* Honorable Discharge Certificate
* Promotion orders 
* Active Duty for Training orders
* Annual Training orders


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's records show she was born on 28 September 1940.

3.  Her available records also show she served on active duty from 23 July 1963 to 31 August 1966 and that she was honorably discharged due to unqualified resignation.  Her DD Form 214 shows she completed 3 years, 1 month, and 
8 days of active service. 

4.  She was appointed as a Reserve commissioned officer of the Army on 12 February 1967.  She served in the USAR in military occupational specialty 3420 (Dietitian).  

5.  On 1 January 1975, she was assigned to the 347th General Hospital, Sunnyvale, CA, and on 1 June 1979, she was reassigned to the 94th General Hospital in Mesquite, TX.  She was promoted to major on 15 March 1975 and lieutenant colonel (LTC) on an unknown date. 

6.  On 1 July 1982, based on her request, she was transferred from her troop program unit (94th General Hospital) to the USAR Control Group (Reinforcement).  

7.  On 4 May 1995, the U.S. Army Reserve Personnel Center, St. Louis, MO published orders honorably discharging her from the USAR effective 4 May 1995 in accordance with Army Regulation 135-175 (Separation of Officers).  

8.  Her ARPC Form 249-2-E, dated 8 September 1998, shows she completed 17 years, 7 months, and 5 days of qualifying service for non-regular retirement.   

9.  In August 2000, she submitted a DD Form 108 (Application for Retired Pay Benefits) to the U.S. Army Human Resources Command (HRC) and requested retirement effective 28 September 2000.  

10.  On 4 October 2000, HRC notified her that by law, to be eligible for retired pay a 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). 

11.  Between September 2014 and April 2015, HRC conducted multiple audits of her retirement points and ultimately updated her AHRC Form 249-E to show completion of 19 years, 2 months, and 15 days of qualifying service.  HRC considered the Leave and Earnings Statements she submitted with this application.  Her updated AHRC Form 249-E shows: 

* she had a good (qualifying) year during Retirement Year Ending (RYE) 198202
* between RYE 198202 and 198702 she did not perform sufficient inactive or active service to earn a qualifying year
* she had a good year during RYE 198902
* she did not perform any service and earned only membership points between 199002 and her discharge date in 199505

12.  Army Regulation 135-175 established policies, standards, and procedures governing the administrative separation of officer of the Army National Guard and the USAR.  This regulation states discharge will be accomplished when it has been determined that a Soldier is no longer qualified for retention unless the Soldier requests and is eligible for transfer to the Retired Reserve in accordance with applicable Army Regulations.

13.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) states in paragraph 2-1 that to be eligible for retired pay an individual does not need to have a military status at the time of application for retired pay, but must have:  (1) attained age 60, (2) completed a minimum of 20 years of qualifying service, and (3) served the last 8 years of his or her qualifying service as an RC Soldier.  During the period October 1991 to December 2001, the requirement to serve the last 8 years in an RC was amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero years.  This regulation also specifies, in part, that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.


14.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 relates to the removal of Soldiers from an active status and states that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.

15.  Title 10, U.S. Code, section 12731 provides the legal age and service requirements for age and service for Reserve non-regular retirement.  It states that a person is entitled, upon application to retired pay if the person has attained the applicable eligibility age, has performed at least 20 years of service computed under section 12732 of this Title; and is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from June 1963 to February 1967.  After a break in service, she served in the USAR from February 1967 to May 1995.  During her initial years of service, she consistently earned sufficient retirement points for each RYE to count as a qualifying year.  

2.  However, beginning in 1982 and all the way through 1995, she earned sufficient points for only 1 year to count as a qualifying year.  Despite receiving membership points during this period, her records show she earned very few or no additional retirement points.  

3.  She contended that her retirement statement was not accurate.  However, HRC conducted multiple audits of her points and ultimately concluded she completed 19 years, 2 months, and 15 days of qualifying service for non-regular retirement.  This is not enough to earn retired pay.  By law and regulation, RC members are required to complete 20 years of qualifying service to be eligible for non-Regular retirement.  She did not do so and she is not entitled to the 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)                                         AR20140018049



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ABCMR Record of Proceedings (cont)                                         AR20140018049



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