IN THE CASE OF:	  

		BOARD DATE:	  11 August 2015

		DOCKET NUMBER:  AR20140019593 


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 one point be transferred from any other year to provide him with 15 membership points for his retirement year ending (RYE) 
23 April 1983.  

2.  The applicant states he is trying to complete his 20 qualifying years for retired pay at age 60.  He believes he should have 15 membership points for his RYE 23 April 1983.  He also believes his RYE 23 April 1990 and 23 April 1991 were qualifying years for retirement.  However, a representative at U.S. Army Human Resources Command (HRC) told him these years do not count due to lack of sufficient evidence to show he had 50 qualifying points per year.  Based on HRC corrections due to lack of sufficient evidence, his cumulative retirement years went from over 16 years to 14 years.  He is 55 years of age.  He wants to complete his military career with 20 qualifying years before he turns age 60.  He has only until the end of this year to get back in the U.S. Army Reserve (USAR) if he can show at least 15 qualifying years for retirement on his AHRC Form 249-E (U.S. Army Human Resource Command Chronological Statement of Retirement Points). 

3.  The applicant provides:

* a letter, dated 18 June 2014, from the Army Review Boards Agency 
* an AHRC Form 249-E, prepared on 18 February 2014
* an information paper, dated 14 October 2014, from HRC
* an Army National Guard Retirement Points History Statement, prepared on 4 June 2014
* an AHRC Form 249-E, prepared on 16 October 2014

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.  On 24 April 1979, the applicant enlisted in the USAR Delayed Entry/Enlistment Program (DEP).  On 1 May 1979, he enlisted in the Regular Army.  On 28 May 1982, he was released from active duty by reason of completion of his required service and transferred to the USAR Control Group (Reinforcement).  On 23 April 1989, he immediately reenlisted in the USAR.

3.  On 11 October 1991, he enlisted in the California Army National Guard (CAARNG).  On 21 April 1996, he was discharged from the CAARNG by reason of expiration of his service obligation.

4.  He had no military status during the period from 22 April 1996 to 22 August 2000.

5.  On 23 August 2000, he enlisted in the CAARNG.  On 30 January 2005, he was discharged from the CAARNG by reason of being medically unfit for retention standards.

6.  His AHRC Form 249-E prepared on 18 February 2014, shows he received 14 membership points for the period 29 May 1982 to 23 April 1983 (his RYE) date.  It also shows he received 15 membership points for RYE 23 April 1990 and  RYE 23 April 1991.  The form shows he was credited with 1 qualifying year for each of these RYEs.  However, the total points creditable for the RYE 23 April 1990 and RYE 23 April 1991 was 15 membership points only.  There were no points for active duty training (ADT) or inactive duty training (IDT).  The AHRC Form 249-E also shows his total qualifying years for retirement as 16 years, 6 months, and 6 days.

7.  An Army National Guard Retirement Points History Statement, prepared on 4 June 2014, shows his cumulative USAR and CAARNG service.

   a.  He received 14 membership points for his RYE 23 April 1983.
   
	b.  He received 15 membership points for his RYE 23 April 1990.  This period covered 12 months.  There were no other points (ADT or IDT) assigned for his RYE 23 April 1990.  The total points creditable for retirement for his RYE 23 April 1990 was 15 points.  There is no evidence he earned any additional points.

	c.  He received 15 membership points for his RYE 23 April 1991.  This period covered 12 months.  There were no other points (ADT or IDT) assigned for his RYE 23 April 1991.  The total points creditable for retirement for his RYE 23 April 1991 was 15 points.  There is no evidence he earned any additional points.

	d.  His total creditable service for retired pay at age 60 is shown as 14 years, 6 months, and 13 days.

8.  On 14 October 2014, HRC provided him with an updated AHRC Form 249-E. He was informed he could not receive 15 membership points for the period 29 May 1982 to 23 April 1983 because he was not in the USAR for an entire calendar year.  The 14 membership points he received reflect the timeframe he was in the USAR.

9.  His AHRC Form 249-E prepared on 16 October 2014 by HRC, corrected the qualifying year credits for RYE 23 April 1990 and RYE 23 April 1991 to zero years.  He did not have the required 50 points for these RYEs to be credited with a qualifying year.  His CAARNG service is not shown on this AHRC Form 249-E. His total qualifying years for retirement on this specific form is 7 years and 1,438 creditable points.

10.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) this regulation prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits. 

   a.  Retirement points may be earned by USAR soldiers for active duty, or while in an active Reserve status, for ADT, initial active duty for training, involuntary active duty for training (involuntary, annual training, IDT) Reserve membership, and for other activities specified in this regulation.
   
   b.  If a Soldier is separated or removed from an active status during a retirement year, the Soldier may be credited with a proportionate maximum number of inactive duty training points.
   
   c.  Each Soldier receives 15 membership points for each year in an active status of the USAR or Army National Guard.  Table C-1 (Retirement Point Credits for Membership in an Active Status in the Army Reserve for Less Than a Full Retirement Year) shows that 15 membership points are assigned to members who are in an active status for 353 - 365 days.  
   
   d.  Personnel earn one point for each calendar day they serve in the aforementioned categories.  For IDT, one point is awarded for each scheduled 4 hour period with a maximum of two points in a calendar day. 

11.  Title 10, U.S. Code, chapter 1223 (Retired Pay for Non-regular Service), section 12731 (Age and Service Requirements), provides that a person is entitled upon application to retired pay if the person is age 60 and has performed at least 20 years of qualifying service.  A qualifying year is determined to be a year in which a minimum of 50 retirement points have been credited for a Reserve Component member.

DISCUSSION AND CONCLUSIONS:

1.  He contends he should receive 15 membership points for his RYE 23 April 1983.  He was transferred to the USAR on 29 May 1982 upon his release from active duty the day before.  He was not in an active status in the USAR for 12 months (353 - 365 days).  The 14 membership points he received were assigned based on the actual time he was in the USAR.  He did not provide any substantive evidence to show he earned more than the 14 points assigned.  The total retirement points earned in RYE 23 April 1983 was less than 50.  Thus, his RYE 23 April 1983 is not a qualifying year for the purposes of receiving retired pay at age 60.

2.  His AHRC Form 249-E prepared on 18 February 2014, erroneously credited him with a qualifying year for the RYE 23 April 1990 and RYE 23 April 1991.  His total points creditable for each of these RYEs was 15 membership points only.  A minimum of 50 retirement points is required for a qualifying year.  The AHRC Form 249-E incorrectly shows his total qualifying years for retirement as 16 years, 6 months, and 6 days.

3.  His AHRC Form 249-E prepared on 18 October 2014, corrects the above errors for RYE 23 April 1990 and RYE 23 April 1991.  Each RYE covers 12 months.  He was assigned 15 membership points for each RYE.  He did not provide any substantive evidence to show he earned more than the 15 membership points.  The total retirement points earned in his RYE 23 April 1990 and RYE 23 April 1991 was less than 50.  Thus, his RYE 23 April 1990 and RYE 23 April 1991 are not qualifying years for the purposes of receiving retired pay at age 60.  His CAARNG service is not shown on this AHRC Form 249-E.  His total qualifying years for retirement is shown as 7 years based on his USAR service only.

4.  His Army National Guard Retirement Points History Statement prepared on 4 June 2014, shows his USAR and his CAARNG service.  It shows he received 14 membership points for his RYE 23 April 1983.  His RYE 23 April 1990 and RYE 23 April 1991 are not shown as qualifying years for the purposes of receiving retired pay at age 60.  It shows his total qualifying years for retirement as 14 years.  

5.  The applicant provided no evidence to support correcting his membership points for RYE 23 April 1983.  As is, the regulatory guidance only supported 14 membership points for that year.  He did not provide evidence such as pay records to support adding more retirement points to RYE 23 April 1983, 23 April 1990 and 23 April 1991.  Thus, there is an insufficient evidentiary basis to grant 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)                                         AR20140019593



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ABCMR Record of Proceedings (cont)                                         AR20140019593



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