IN THE CASE OF:	  

		BOARD DATE:	  28 July 2015

		DOCKET NUMBER:  AR20140019608 


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, correction of her record to show she is eligible to receive nonregular retired pay upon reaching 60 years of age.

2.  The applicant states she was released from Regular Army status in 1992; however, she was never a Regular Army Officer.  She was released from Reserve status in 14 January 2008.  She was denied Reserve retirement benefits after serving over 17 years as a Reserve officer on active duty.  She was released to the Individual Ready Reserve (IRR) because she did not have a Reserve unit.  She never relinquished her Reserve status.  She was a Reserve direct commission into the Active Army and never had a Reserve unit assignment. 

3.  The applicant provides:

* ARPC Forms 249-2-E (Chronological Statement of Retirement Points)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* orders 
* a letter from the U.S. Army Human Resources Command (AHRC)
* a self-authored statement
* Honorable Discharge Certificate
* documents pertaining to separation
* a letter addressed to the Defense Officer of Hearings and Appeals
* DD Form 2656 (Data for Payment of Retired Personnel)
* Standard Form 1199A (Direct Deposit Sign-Up Form)

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 executed an oath of office on 21 July 1975.  She was ordered to active duty with an effective date of 8 August 1975 for a period of two years.

3.  On 7 May 1976, she was approved for retention on active duty under an indefinite service agreement.

4. On 7 January 1992, she requested to be separated under the Special Separation Benefit (SSB) Program with an effective date of 29 September 1992.

5.  In a memorandum, subject:  Release from Active Duty- (SSB), Category III, FY 92 Voluntary Separation Program, dated 17 January 1992, she requested release from active duty (REFRAD).  She stated:

     a.  She desired REFRAD for the purpose of receiving SSB payment.  She requested 29 September 1992 as her release date.

     b.  She understood that if her release was approved she would be given an Honorable or General Discharge Certificate.  She also understood that once her request was approved it could not be withdrawn.

     c.  Her present duty station was the U.S. Army Recruiting Battalion in Lansing, MI.

     d.  If her application was not accepted she did not desire to be separated.

     e. She did not desire appointment in the U.S. Army Reserve.

     f.  She agreed to serve in the Ready Reserve for a period of at least three years in addition to any remaining military service obligation based on statute following her separation from active duty. 
     
     g.  She understood the provisions of the message regarding eligibility for nonmonetary separation benefits and recoupment of SSB payments in the event she subsequently qualified for retirement pay.

6.  A memorandum, subject:  Unqualified Resignation (Army Regulation 635-120), dated 17 February 1992, shows that her appointment in the IRR was required and she desired appointment.

7.  On 26 June 1992, she was appointed as a Reserve commissioned officer in the IRR.
  
8.  Her DD Form 214 shows she was honorably discharged on 26 June 1992 under the provisions of Army Regulation 635-120 (Officer Resignations and Discharges), chapter 3.  The narrative reason for her separation was "Voluntary Incentive Pay-SSB."   She was credited with completing 16 years, 10 months, and 19 days of net active service this period and she received a lump sum SSB payment of $110,229.76.

9.  Orders B-04-500634, issued by the U.S. Army Human Resources Command, St. Louis, MO, dated 21 April 2005 show she was promoted to lieutenant colonel (LTC) on 10 February 2005, with a date of rank of 30 September 1993.

10.  On 27 December 2006, she was assigned to the Standby Reserve (Inactive List) for failing to make a military service obligation (MSO) election.

11.  On14 January 2008, she was discharged from the U. S. Army Reserve with an effective date of 14 January 2008 for failing to provide an MSO election form.

12.  Her record contains a DD Form 108, dated 30 December 2010 that shows she applied to HRC for retired pay.  Item 3 (Date Retired Pay to Begin) shows the date "20110927" (27 September 2011).

13.  Her ARPC Form-E, dated 27 June 2013, shows she was credited with 17 years of qualifying service for non-regular retirement.  Specifically, this statement shows during the retirement year ending:

* 20 July 1976 – she earned 348 active duty points for a total of 1 year of qualifying service for retirement
* 20 July 1977 – 20 July 1986 she earned 365 active duty points each year for a total of 10 years of qualifying service for retirement
* 26 October 1968 she earned 98 active duty points for a total of 3 months and 6 days of qualifying service for retirement
* 20 July 1987 – she earned 267 active duty points for a total of 8 months and 24 days 
* 20 August 1988 – 20 July 1991 she earned 365 active duty points for a total of 4 years of qualifying service for retirement
* 26 June 1992 – she earned 342 active duty points for a total of 11 months and 6 days of qualifying service for retirement 
* 20 July 1992 – she earned 1 membership point for a total of 
24 days of qualifying service for retirement
* 20 July 1992 – 20 July 2006 she earned membership points only and she did not earn any qualifying service for retirement
* 27 December 2006 – she earned 7 membership points and she did not earned any qualifying service for retirement

13.  She submitted a memorandum from HRC dated 12 August 2013 that stated, in pertinent part:

	a.  To be eligible for retired pay at age 60, under Title 10, U.S. Code, 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 in a Reserve component.

     b.  Service in an inactive Reserve section, such as the Retired Reserve, is not creditable for retirement purposes.  Since 1 July 1949, a Reserve Soldier must have earned at least 50 retirement points per year for that service to be creditable for retirement.

	c.  An audit of her military record showed she completed 17 years of qualifying service for retirement.  Accordingly, she was ineligible for retired pay.

14.  Her record is void of any evidence and she has not provided any evidence that shows she completed any service that was not previously accounted for on her DD Form 214 or her ARPC Form 249-E.

15.  Title 10, U.S. Code, sections 12731-12737 authorize retired pay for Reserve Component (RC) military service.  To be eligible for retired pay under this law, a Reserve Soldier, upon attaining age 60, must have completed a minimum of 20 qualifying years.  After 1 July 1949, a qualifying year is defined as a year in which at least 50 retirement points are earned.

16.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of retired pay to Soldiers and former Reserve Component Soldiers.  Paragraph 2-8 of the regulation describes qualifying service, as pertains to this case, as service performed in an active status in a Reserve component or in active federal service.  After 30 June 1949, a reservist 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 less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service.  Service in an inactive Reserve component is not creditable for retirement purposes.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she is entitled to non-regular service retired pay at age 60.

2.  Her DD Form 214 shows she was discharged from active duty on                     26 June 1992 and she was transferred to the USAR Control Group (Reinforcement).

3.  Orders show she was assigned to the Standby Reserve (Inactive List) for failing to make a MSO election.  Evidence shows she only attained 17 years of creditable service for retired pay.

4.  Her record is void of any evidence and she has not provided any evidence that shows she earned at least 20 years of qualifying service for retired pay and associated benefits.

5.  The evidence shows between July 1993 and July 2006 she only earned 15 membership points per year and in January 2008 she only earned 7 membership points.  She did not complete any qualifying service for retirement during this period.

6.  To be eligible for retired pay based on non-regular service, an individual must have attained the age of 60 and completed a minimum of 20 years of qualifying service.  A qualifying year is defined as a year of service during which a Reservist earns at least 50 retirement points.

7.  In view of 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)                                         AR20140019608





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ABCMR Record of Proceedings (cont)                                         AR20140019608



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