IN THE CASE OF:	  

		BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20140019581 


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 AHRC Form 249-E (Chronological Statement of Retirement Points) to show he earned 50 or more qualifying points during Retirement Eligibility Year (RYE) 19760814-19770813 and 19930814-19940813.  In effect, he requests correction of his records to show he completed 21 qualifying years of service for non-Regular retirement and entitlement to retired pay at age 60.

2.  The applicant states:

* he served honorably and faithfully for 21 years and at a minimum, he should receive credit for 20 years of qualifying service
* he did not miss any battle assemblies or annual training during his service in the U.S. Army Reserve (USAR)
* he would have continued serving to 20 qualifying years to earn retired pay if he had known  
* he is very disappointed that now that he is retired pay eligible (age 60) he is being denied retired pay due to errors in calculating his retirement points 
* he did not receive a 20-year letter and now feels he earned the right to receive retired pay
* his unit administrator explained to him that once he reached age 60 he could apply for retired pay
* his AHRC Form 249 shows he has 19 qualifying years of service and he was informed by his unit that he had over 20 years of service
* he was always a good Soldier and performed his duties as instructed by his chain of command 

3.  The applicant provides:

* DD Form 108 (Application for Retired Pay Benefits)
* DD Form 2656 (Data for Payment of Retired Personnel) 
* retired pay application/packet
* denial letter from U.S. Army Human Resources Command (HRC)
* AHRC Form 249-E, dated 15 September 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 22 September 1954.  He turned 60 years old on 22 September 2014.

2.  He enlisted in the Regular Army on 14 August 1973 and he was honorably released from active duty on 13 August 1976.  He was transferred to a troop program unit (TPU) in the USAR.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 3 years of creditable active service during this period.

3.  Following his release from active duty, he was assigned to the 803rd General Support Company, Opelika, AL.  His record of training attendance and/or annual training is not available for review with this case.  

4.  He was honorably discharged from the USAR on 31 July 1979, for the purpose of immediate reenlistment in the USAR.  He reenlisted in the USAR for 6 years on 1 August 1979.  He was promoted to sergeant (SGT)/E-5 on 21 June 1980.  He served through a 6-year reenlistment on 8 May 1985 and a 3-year reenlistment on 4 May 1991.  His expiration of term of service (ETS) was established as 3 May 1994. 

5.  On 4 August 1994, the commanding officer of the 803rd Quartermaster Company submitted a DA Form 4651-R (Request for Reserve Component Assignment or Attachment) to the higher headquarters requesting the applicant's discharge due to ETS.  

6.  On 22 August 1994, Headquarters, U.S. Army Reserve Command, Atlanta, GA published Orders 94-222-028 honorably discharging the applicant from the USAR effective 22 August 1994 in accordance with Army Regulation 135-178 (Enlisted Administrative Separations). 


7.  His ARPC Form 249 shows he completed 19 years of service toward non-Regular retirement.  A breakdown of his retirement points is as follows:

FROM
TO
COMPONENT
TOTAL POINTS
QUAL YEAR
19940814
19950813
USAR
15
00/00/00
19930814
19940813
USAR
42
00/00/00
19920814
19930813
USAR
53
01/00/00
19910814
19920813
USAR
70
01/00/00
19900814
19910813
USAR
87
01/00/00
19890814
19900813
USAR
60
01/00/00

























19810814
19820813
USAR
82
01/00/00
19800814
19810813
USAR
73
01/00/00
19790814
19800813
USAR
74
01/00/00
19780814
19790813
USAR
73
01/00/00
19770814
19780813
USAR
54
01/00/00
19760814
19770813
USAR
15
00/00/00
19750814
19760813
RA
365
01/00/00
19740814
19750813
RA
365
01/00/00
19730814
19740813
RA
365
01/00/00





TOTAL


2340
19/00/00
8.  In 2014, he submitted a DD Form 108 requesting retired pay at age 60.  He also submitted a DD Form 2656 but did not make a Survivor Benefit Plan election.

9.  On 1 October 2014, by letter, HRC advised the applicant that:

	a.  Title 10, U.S. Code, sections 12731-12737, authorize retired pay for Reserve Component military service.  To be eligible for retired pay under this 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 approve this pay until all requirements have been met.

	b.  An audit of his military records showed he completed 19 years of qualifying service for retirement as shown on his AHRC Form 249-E.  He did not complete 20 qualifying years of service and therefore is not eligible for retirement benefits.  He may apply to the Army Board for Correction of Military Records to review this case.

10.  Title 10, U.S. Code, section 12731, provides that a non-Regular (Reserve) service member is entitled to retired pay upon application if the person is at least 60 years of age, has performed at least 20 years of qualifying service, and (having completed the service requirement during the period beginning 1 October 1994 and ending 30 September 1999) shall have performed the last 6 years of qualifying service while a member of a Reserve Component.  In 2006, the requirement to have the last 6 qualifying years in a Reserve Component was eliminated (reduced to zero). 

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, Reserve Component 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 non-Regular retired pay is a full retirement year during which a Regular or Reserve member is credited with a minimum of 50 points.

2.  In this case the applicant did not complete 20 qualifying years of service.  As such, from a statutory and regulatory standpoint, he does not qualify for non-Regular retired pay.  He lacked one qualifying year of service.  He did not serve 21 qualifying years of service as he contends.  

3.  He contends the Board should correct his points for RYE 19760814-19770813 and 19930814-19940813 but does not provide any documentary evidence to show the points he earned during each RYE.  

4.  Nevertheless, during RYE 19930814-19940813, the applicant was awarded 42 retirement points which were insufficient for that RYE to count as a qualifying year.  The applicant also earned in excess of 50 retirement points during several previous years.  Therefore, redistributing 8 of his excess points to RYE 19930814-19940813 would credit him with 50 retirement points for this RYE and a qualifying year which would subsequently entitle him to non-Regular retired pay for 20 qualifying years.


5.  The above correction would entitle the applicant to receipt of his notification of eligibility to receive retired pay at age 60 (20-year letter).  However, since he is already beyond 60 years of age, with the above correction, he should be placed on the Retired List in the rank/grade of SGT/E-5 effective 22 September 2014, his 60th birthday, with entitlement to retired pay effective that date.

6.  A Survivor Benefit Plan (SBP) election must be made (emphasis added) prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant's SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSO's by country, state, and installation is available on the Internet at http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

7.  In view of the foregoing, the applicant's records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* redistributing 8 of the applicant's excess retirement points to RYE 19930814-19940813 to provide him with a full qualifying year of service for this RYE
* placing the applicant on the Retired List in the rank/grade of SGT/E-5 effective 22 September 20142
* paying him retired pay effective 22 September 2014


2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction of his AHRC Form 249-E to show he earned 50 or more qualifying points during RYE 19760814-19770813.



      _______ _   _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)                                         AR20140019581



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ABCMR Record of Proceedings (cont)                                         AR20140019581



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