RECORD OF PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:           12 February 2004                   
	DOCKET NUMBER:   AR2003089368

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

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance 		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Robert J. Osborn		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that he be granted retirement points for the years 1993 through 2003.  

2.  The applicant states, in effect, that he thought that he would receive retirement points by being a member of the Individual Ready Reserve (IRR).  He claims that he signed up in case there was a shortage or need for individuals with his military occupational specialty (MOS).  He states that after being diagnosed with a Post Traumatic Stress Disorder (PTSD), he requested to be transferred to the Retired Reserve.  

3.  In support of his application, the applicant provides a copy of a separation document (DD Form 214), dated 10 December 1971, a copy of a DD Form 214, dated 20 September 1990, and a Chronological Statement of Retirement Points (ARPC 249-2-E), dated 13 June 2000.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of a perceived error or injustice that occurred upon his discharge from the United States Army Reserve on 1 January 1993.  The application submitted in this case is dated 9 April 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.   The applicant’s record shows that on 14 January 1969, he entered the United States Army Reserve (USAR) Delayed Entry Program (DEP).  He remained in that status until 10 February 1969, at which time he entered active duty in the Regular Army.  

4.  On 10 December 1971, the applicant was honorably released from active duty (REFRAD) and transferred to the USAR.  The DD Form 214 he was issued on that date shows that he completed a total of 2 years, 10 months, and 1 day of active military service and that he had completed 26 days of other service, which accounted for his time in the DEP.  

5.  The record confirms that the applicant continued to serve in various active USAR statuses until being honorably discharged on 1 January 1993.  During this period, the applicant completed an 11 month and 11 day period of active duty service from 20 September 1990 through 30 August 1991.  

6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a copy of a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), 
dated 31 August 1992, issued by the Army Reserve Personnel Command (ARPERSCOM), St Louis, Missouri.  This letter informed the applicant that based on his having completed the required years of service, he would be eligible for retired pay on application at age 60.  

7.  The MPRJ also contains a copy of Orders Number 064-086, dated 
30 December 1992, issued by the United States Army Reserve Command, 
Fort McPherson, Georgia, which directed the applicant’s honorable discharge from an active USAR status on 1 January 1993.  

8.  The last Reserve Points Accounting System (RPAS) statement of service on file covers the period from 14 January 1969 through 13 January 1996.  This document shows that the applicant completed a total of 22 years of qualifying service for Reserve retirement purposes.  It also confirms that the applicant  earned 15 membership points per year for the period 14 January 1993 through 13 January 1996.  

9.  Army Regulation 135-180 implements statutory authorities governing the granting of "retired pay" to soldiers and former Reserve components soldiers. Paragraph 2-8 contains guidance on service creditable for retirement purposes.  It states, in pertinent part, that a Reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  Only soldiers assigned to an active status in a Reserve Component or individuals inactive Federal service are authorized to earn retirement point credits. 

10.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR soldiers.  Paragraph 2-2 outlines the criteria for earning retirement points.  It states, in pertinent part, that retirement points may be earned by USAR soldiers for active duty (AD), or while in an active Reserve status, for active duty for training (ADT), initial active duty for training (IADT), involuntary active duty for training (involuntary ADT), annual training (AT), inactive duty training (IDT), and Reserve membership.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that he should have received retirement points for service in the IRR from 1993 through 2003 was carefully considered.  However, there is insufficient evidence to support this assertion.

2.  The evidence of record confirms that the applicant was honorably discharged from an active USAR status on 1 January 1993.  The last RPAS service summary on file also shows that he earned only 15 membership points per year for the period 14 January 1993 through 13 January 1996.  By regulation, 
50 points per year is required to earn a qualifying year for Reserve retirement purposes.  As a result, the applicant is not entitled to qualifying service for retirement purposes for this period.  

3.  The evidence of record also confirms that the applicant completed 22 years of qualifying years of service for Reserve retirement purposes.  As a result, he is eligible to receive retired pay at age 60 upon application.  Thus, there is insufficient evidence to show any error or injustice related to the applicant’s retirement eligibility or the service upon which it is based.  

4.  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.  

5.  The evidence of record shows that the applicant should have discovered the alleged error or injustice now under consideration at the time of his discharge from the USAR on 1 January 1993.  Therefore, the time for him to file a request for correction of any error or injustice expired on 31 December 1996.  However, he did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RJO__  __LE___  __JHL __     DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

		SEE ATTACHED SIGNATURE
		        CHAIRPERSON

INDEX

CASE ID	AR2003089368	
SUFFIX		
RECON		
DATE BOARDED	2004/02/12	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1993/01/01	
DISCHARGE AUTHORITY	AR 135-178	
DISCHARGE REASON	ETS	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  332	135.0000	
2.		
3.		
4.		
5.		
6.