IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080012987 


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, that his records be corrected to show he completed 20 qualifying years of service and is eligible for a non-regular Reserve retirement and retired pay at age 60.  

2.  The applicant states, in effect, that his points are incorrect and that he was never issued a Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter); however, he should receive retirement.  

3.  The applicant provides the following documents in support of his application:  United States Army Human Resources Command, St. Louis, Missouri (HRC-St. Louis) Letter, dated 4 February 2008; Retirement Points Accounting System (RPAS) Statement of Service, dated 4 February 2008; Application for Retired Pay Benefits (DD Form 108); Data for Payment of Retired Personnel (DD Form 2656); Direct Deposit Sign Up Form; Headquarters, 88th United States Army Reserve Command Orders 022-8808-03, dated 3 March 1981; Identification (ID) Card; Enlistment/Reenlistment Document (DD Form 4/1); United States Army Reserve (USAR) Personnel Center Orders T-07-026882, dated 27 July 1990; Oath of Extension of Enlistment or Reenlistment; Leave and Earning Statements (LES); Headquarters, 84st Engineer Battalion (Combat) Orders 8-1, dated 5 March 1988; USAR Drill Recording Form (DA Form 5350); USAR Personnel Center Orders D-12-508749, dated 12 December 1995; Statement of Retirement Points, dated 30 December 1981; DD Form 214 (Armed Forces of the United States Report of Transfer of Discharge), dated 18 April 1969; and Chronological Statement of Retirement Points, dated 24 July 2007.

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 record shows he initially enlisted in the United States Navy (USN) and entered active duty on 7 July 1965.  He served on active duty in that status for 3 years, 9 months and 10 days until being honorably released from active duty (REFRAD) on 18 April 1969.  At that time, he was transferred to the, USN Reserve (USNR) Control Group to complete his military service obligation (MSO).

3.  On 6 July 1971, he was honorably discharged from the USNR after completing his MSO. 

4.  On 5 October 1977, the applicant enlisted in the USAR.  He continuously served in that status in various capacities until being honorably discharged on 
12 December 1995.

5.  A Chronological Statement of Retirement Points (ARPC Form 249-2-E) on file in the applicant's Official Military Personnel File (OMPF) shows that he has compiled 2471 creditable points and completed 11 years, 9 months and 11 days of qualifying service for non-regular Reserve retirement.  

6.  On 12 December 2007, the applicant submitted an Application for Retired Pay (DD Form 108).

7.  On 4 February 2008, the HRC-St. Louis Chief, Transition and Separations Branch informed the applicant, in response to his retirement application, that the applicable law required a Reserve Soldier to complete 20 years of qualifying service in order to qualify for retirement, and that an audit of the applicant's record revealed he had completed only 11 years, 9 months and 11 days of qualifying service for retirement and as a result was not eligible for retired pay.

8.  In connection with the processing of this case, an advisory opinion was obtained from the HRC-St. Louis Chief, Retired Pay Transition and Separations Branch.  This official stated that the applicant had only completed 11 years, 
9 months and 11 days of qualifying service for retirement.  Based on this fact, the applicant's request for retirement was denied on 4 February 2008.  This official also stated that a correction to the applicant's AHRC Form 249-2E had been made during the processing of his retirement application; however, no additional retirement points were granted.  This official further stated that under current law the applicant's less than 20 qualifying years of service does not qualify him for retirement.  Therefore, a 20 Year Letter had not been issued to the applicant. 

9.  On 10 December 2008, the applicant was provided a copy of the HRC-St. Louis advisory opinion in order to have the opportunity to respond to or rebut its contents.  To date, he has failed to reply.  

10.  Army Regulation 135-180 (Qualifying Service For Retired Pay Non-Regular Service) prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, United States Code, Chapter 67, sections 1331 to 1337.  This regulation specifies, in pertinent part, that to be eligible for retired pay an individual must have attained age 60 and completed a minimum of 20 years of qualifying service and that subsequent to 1 July 1949, qualifying service is granted only for each year of service an individual earns 50 or more retirement points.

11.  Title 10 of the United States Code, Section 12731 (Age and Service Requirements) provides the legal authority for age and service requirements for non-regular retirement.  It states, in pertinent part, that a member is eligible to receive retired pay at age 60 if they have completed 20 years of qualifying service for retirement.  In the case of a member who completed the 20 qualifying years of service requirement in the 180 day period beginning on the date of enactment of the National Defense Authorization Act for Fiscal Year 2005, he or she must have performed the last 6 years (changed from 8) of qualifying service in a Reserve Component.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he is eligible for non-regular retirement.  However, by law, in order to qualify for Reserve non-regular retirement and retired pay at age 60, a member must complete at least 20 years of qualifying service.  



2.  The evidence of record confirms the applicant completed a total of only
11 years, 9 months and 11 days of qualifying service for retirement.  As a result, he is not eligible to receive a 20 Year Letter or to receive retired pay at age 60.  Absent any evidence that the applicant completed additional qualifying service that is not credited on his RPAS statement, there is an insufficient evidentiary basis to grant him additional credit for service he did not perform and/or to grant the requested relief. 

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant him 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.




      _______ _  XXX _______   ___
               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)                                         AR20080012987



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ABCMR Record of Proceedings (cont)                                         AR20080012987


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