IN THE CASE OF:  	  

		BOARD DATE:  27 August 2015	  

		DOCKET NUMBER:  AR20140020260 


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 his records to show he completed 20 years of qualifying service for a non-regular retirement at age 60. 

2.  He states, in effect, that during his time in the military he served 22 years, 
2 months, and 8 days as stated in his papers.  However, he was notified by letter that he was ineligible for retirement pay because records show that he only completed 16 years.  He contends that he sustained an injury during his period of service and wanted to apply for retirement but his unit was deployed to Iraq and he could not find anyone to help him.  Although he did not understand the process he tried to address the situation but no one had a clue as to what he was talking about.

3.  He provides a memorandum from the National Guard Bureau (NGB), dated 
1 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. The applicant's records show he was born on 14 December 1953.  He turned 60 years old on 14 December 2013.

3.  His NGB Form 23A (Army National Guard (ARNG) Current Annual Statement), prepared on 8 November 2007, shows he served in the U.S Navy, U.S Naval Reserve, and ARNG during the period 24 October 1972 through 
1 June 2007.

4.  This statement further shows the applicant was notified that as of 8 November 2007 he had accumulated 2,348 points and 16 years, 8 months, and 20 days of creditable service toward eligibility for retired pay; therefore, he required 4 more years of creditable service to reach 20 years.

5.  His NGB Form 22 (Report of Separation and Record of Service), effective 
1 June 2007, shows in item 10 (Record of Service):

   10a (Net Service) - 11 years, 8 Months, and 20 days
   10b (Prior Reserve Component Service) - 5 years and 3 months
   10c (Prior Active Federal Service) - 3 years
   10d (Total service for Pay) - 19 years, 11 months, and 20 days
   10e (Total Service for Retired Pay) - 16 years, 8 months, and 20 days

6.  The applicant provides a letter from the NGB, dated 1 October 2014, which informed the applicant that the ARNG’s Personnel Division conducted a thorough review of his personnel and retirement point records and determined that he did not earn the required 20 years of qualified service for military retired pay eligibility.  He served faithfully for 22 years, 2 months and 8 days for pay purposes.  However, within those years, he earned only 16 years, 8 months, and 20 days of qualifying service towards a military retirement.  U.S. Code (USC), Title 10, Armed Forces, Section 12731, Age and Service Requirements, requires that a member must earn minimum of 50 retirement points in an anniversary year to qualify for retired pay eligibility.

7.  A review of his record in the interactive Personnel Electronic Records Management System failed to reveal additional service after 2007.  

8.  Army Regulation 135-180 (ARNG and Army Reserve – Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing granting retired pay to Soldiers and former Reserve Component (RC) Soldiers.  Paragraph 2-8 describes qualifying service as service performed in an active status in a RC or in active Federal service.  After 30 June 1949, a Reserve Soldier 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 of less than a full retirement year, a minimum number of retirement points must be earned to have that period credited as qualifying service.

9  Title 10, USC, sections 12731 through 12740 authorize retired pay for Reserve component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  Section 12731 states a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person has attained the eligibility age applicable under the appropriate subsection and has performed at least 20 years of service computed under section 12732 of this title.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his record to show he has 20 years of qualifying service for non-regular retirement pay.

2.  The applicant’s NGB Form 22 clearly shows his cumulative periods of service exceed 20 years.  However, both his NGB Form 22 and NGB Form 23A show he was credited with 16 years, 8 months, and 20 days of qualifying service for a non-regular retirement.  He was notified in November 2007 that he needed to complete an additional 4 years of qualifying service to be eligible for retired pay.

3.  His record is void of any additional service and he did not provide any substantiating evidence of any additional service beyond 2007.  As such, there appears to be no error or injustice; therefore, 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)                                         AR20140020260





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ABCMR Record of Proceedings (cont)                                         AR20140020260



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