MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:               25 October 2001               
	DOCKET NUMBER:      AR2001060786

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Ronald E. Blakely		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS: That his records be corrected to show he has           21 years, 5 months and 13 days of qualifying service for retirement at age 60.  He provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 10 August 1962, which shows a total of 1 year,      3 months and 24 days of active service and a NGB (National Guard Bureau) Form 22 (Report of Separation and Record of Service) dated 23 October 1991, which shows 21 years, 5 months and 13 days total service for pay.  

PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD: The applicant's military records show:

During the period 23 April 1958 through 6 May 1963, he served in the Wisconsin Army National Guard (WIARNG).  Records show he attained 4 years, 1 month and 12 days of qualifying service towards retirement at age 60.

During the period 7 May 1963 through 31 March 1966, he was assigned to the Army Reserve Personnel Command (ARPERSCOM) Control Group (Reinforcement) and attained no qualifying service towards retirement.

During the period 1 April 1966 through 23 August 1978, he had no military affiliation.

During the period 24 August 1978 through 23 October 1991, the date of his discharge, he served in the WIARNG and attained 13 years of creditable service towards retirement at age 60.  This brought his total qualifying service to           17 years, 1 month and 12 days.

The applicant turned age 60 on 12 April 2001.

On 4 September 2001, the supervisor, Retirements and Annuities, ARPERSCOM opined that the applicant has 17 qualifying years for retirement, as specified in Title 10, United States Code, section 1223 and slightly more than 21 years of total service longevity.

On 27 September 2001, this Board provided the applicant with a copy of the opinion for acknowledgement/rebuttal.  The applicant did not respond.

Army Regulation 135-180 prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, Unites States Code, chapter 67, sections 1331 and 1337.  This regulation specifies, in 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 (good years); 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.

The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year, and which count as qualifying years of service for retirement benefits at age 60.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 23 October 1991, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 23 October 1994.

The application is dated 24 July 2001 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION: The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.  Prior to reaching this determination the Board looked at the applicant's entire file.  It was only after all aspects of the case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit the application within the three-year time limit.  

BOARD VOTE:

_kan_____  _reb____  _rjw____    EXCUSE FAILURE TO TIMELY FILE

________  ________  ________    GRANT FORMAL HEARING

________  ________  ________    CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2001060786	
SUFFIX		
RECON		
DATE BOARDED	20011025	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	135.02	
2.		
3.		
4.		
5.		
6.