RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  24 February 2004
	DOCKET NUMBER:  AR2003089546

	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	
	Ms. Joyce Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Lawrence Foster		Member	
	Ms. Margaret V. Thompson		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, transfer to the Retired Reserve.

2.  The applicant states that he has sufficient time for retirement purposes and that his last 9 years were in a Reserve Component (RC).  He also states that his serious injury prevented him from attending physical training.  

3.  The applicant provides a copy of a letter, dated 13 April 1982, and copies of documents from his medical records.

4.  The applicant provides an additional statement of facts.  He states that in 1977, he joined the Reserve and intended to remain for 15 years.  At the time of his enlistment, he was informed that he only needed 6 years in order to qualify for retirement at age 62.   Upon filing his application for retirement, he discovered that the retirement age was sixty (60) and that a minimum of eight (8) years in the RC were required.  In 1983, he suffered a very serious injury that prevented him from performing his physical activities.  He assumed that he would not be able to pass a physical or continue activities in the Reserve in a satisfactory state.  He now feels that he has adequately served his country well and could definitely use the retirement benefits. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of injustice which occurred on 28 April 1986, the date of his discharge.  The application submitted in this case is dated 8 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 military records show he enlisted in the US Army Reserve (USAR) on 18 June 1977, with prior active duty service of 11 years, 10 months, and 8 days.   

4.  He was promoted to sergeant first class (SFC/E-7) effective 2 February 1980. 

5.  On 25 March 1983, the applicant was admitted to the hospital for removal of his pelvic hoffman.  He was diagnosed as having a left pelvic fracture and pubic diastasis.  He was discharged to home to resume all pre-hospital activities in 6 weeks.

6.  He reenlisted in the USAR on 29 April 1983 for a period of 3 years with an established expiration of term of service (ETS) of 28 April 1986.

7.  On 24 January 1984, he was released from his troop program unit (TPU) and was assigned to the USAR Control Group (Reinforcement).

8.  On 28 April 1986, he was honorably discharged from the USAR Control Group (Reinforcement), in the rank of SFC by reason of ETS.

9.  The applicant provided a copy of letter, dated 13 April 1992, that he wrote to the Army Reserve Personnel Center (ARPERCEN).  He attempted to establish eligibility for retirement based on his active duty and Reserve service and requested that he be supplied with all of the available information.

10.  The applicant's records contain a copy of a memorandum from the Chief, Transitions and Separation Branch, Army Reserve Personnel Command (AR-PERSCOM).  This memorandum was in reply to his Application for Retired Pay Benefits.  It stated that Title 10, United States Code (USC), sections 12731-12737, authorized retired pay for current and former members of the RC who have reached age 60 and completed a minimum 20 years of qualifying service.  The last 8 years of qualifying service must be performed as a member of the RC. Service in an inactive Reserve status, such as the Retired Reserve, is not creditable for retirement purposes.  After 1 July 1949, a Reserve soldier must have earned at least 50 retirement points per year for that service to be creditable for retirement.

11.  An audit of the applicant's records show that he completed 24 years, 11 months, and 14 days of total service both qualifying and non-qualifying.  His last period of active duty service was from 17 May 1971 through 31 March 1977 and is shown as Regular Army (RA) service.  He was credited with 20 years, 1 month, and 4 days qualifying service for retired pay benefits as shown on his Chronological Record of Military Service, dated 31 July 2002.  This statement shows that his last 9 years were in a RC and that five of those years were qualifying for retirement.  Those 5 years of qualifying service have well over the required 50 points in each year.  He was credited with 15 membership points for his retirement year ending (RYE) of 17 June 1982, 17 June 1984, and 17 June 1985 and only 13 membership points for his RYE of 28 April 1986 which were not creditable years for retirement purposes. 

Begin date	End date	Comp	Inactive duty	Mbr points	Active Duty Points	Qual for retirement
Yrs Mos days	Total points Cred 	Points needed//	
760517
	770331	RA	0	0	219	001014	219		
770401 
	770617	BREAK	0	0	0	0	0		
770618
	780617	USAR	49	15	15	01	75	(15)
over	
780618	790617	USAR	44	15	15	01	74	(14) over	
790618	800617	USAR
	52	15	17	01	77	(17) over	
800618	810617	USAR
	35	15	17	01	67	(7) over	
810618	820617	USAR
		15		0	15	(35)	
820618	830617	USAR
	28	15	17	01	60		
830618
	840617	USAR		15		0	15	(35)	
840618
	850617	USAR		15		0	15	(35)	
850618
	860428	USAR		13		0	13		

12.  Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.

13.  Army Regulation 135-178, in effect at the time, established the policies, standards, and procedures governing the administrative separation of enlisted soldiers from the Reserve Components.  Paragraph 1-3 states, in pertinent part,
that orders discharging a soldier would not be revoked or the effective date changed after the effective date of discharge unless there was evidence of 
manifest error or fraud.  After the effective date of discharge, orders could be amended by the separation authority only to correct manifest errors such as the wrong character of service or to correct administrative errors such as errors concerning rank, social security number, or misspelled name.

14.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), indicates, in pertinent part, that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and, (3) served the last 8-years of his or her qualifying service as a Reserve Component (RC) soldier.  The requirement to serve the last 8 years in a RC has since been amended to the last 6-years but was not in effect in 1986.

15.  Sections 12731 through 12739 of Title 10, United States (US) Code, 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.  After 1 July 1949, a qualifying year is one in which a Reserve soldier earned 50 retirement points or more. 

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of records shows that the applicant completed over 20 years of qualifying service for Reserve retirement but he only had 5 years of qualifying RC service.  He was credited with only 15 membership points for his RYE of 17 June 1982, 17 June 1984, and 17 June 1985.

2.  It is apparent that the applicant satisfactorily served on active duty and in the USAR for over 20 years but was unable to meet the requirement of 8 years qualifying RC service based on his medical condition.  It also appears that he did not understand the requirement for 8 years of qualifying RC service for retirement purposes.

3.  The applicant is two retirement points short of having his excess retirement points in his qualifying RC service redistributed to his unqualifying RC retirement years of 17 June 1982, 17 June 1984, and 17 June 1985.  In recognition of the applicant's 20 years of qualifying service, and in view of the circumstances of this case, it would now be in the interest of justice, and as an exception to policy, to show that the applicant's Regular Army service from 17 May 1971 through 31 March 1977 was USAR service on active duty for the purpose of retirement points accounting.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

___ro___  ___lf___  ___mt____  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that the applicant's Regular Army service from 17 May 1971 through 31 March 1977 was USAR service on active duty for the purpose of retirement points accounting. 

2.  That upon completion of the administrative action required by Paragraph 1 above, by showing that he is entitled to retired pay effective the date of the approved Board Proceedings.

		____Raymond V. O’Connor, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	AR2003089546	
SUFFIX		
RECON		
DATE BOARDED	20040224	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19860428	
DISCHARGE AUTHORITY	AR2003089546	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	338	
2.		
3.		
4.		
5.		
6.