RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            FEBRUARY 12, 2004                  
	DOCKET NUMBER:   AR2003090340

	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. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Robert J. Osborn		Member	
	Mr. Lester Echols		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 given credit for 20 qualifying years of service for Retired pay purposes and that he be given Retired Pay. 

2.  The applicant states, in effect, that his military services were terminated on 5 April 1984, because he had reached the customary removal age of 64.  Much later, when his time was computed, he was informed that he had only 14+ creditable years for retirement purposes.  He goes on to state that due to a long series of discriminatory practices he was prevented, misled or denied the same and equal opportunity to serve his country as a member of the armed forces in a manner that would have produced a minimum of twenty creditable years of military service.  He further states that his protest is based upon the ingrained systematic racial discrimination and prejudicial practices in the Marines, Air Force and Army, since his induction into the service at his local draft board in the summer of 1941.  He goes on to provide a chronology of events in his supporting statement and closes by stating that had the military been more cooperative, he is certain that he would have done more; however, the racial discrimination prevented him from completing his military career and attaining the benefits of a full retirement.  He also states that he elected to be transferred to the Retired Reserve and is willing to serve more if needed.

3.  The applicant provides a resume of his civilian and military background as well as copies of correspondence to his congressional representatives.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 5 April 1984.  The application submitted in this case is dated 25 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 was born on 5 April 1920 and was commissioned as a second lieutenant in the Army of the United States (AUS).  On 19 May 1943, he resigned his commission and enlisted in the Enlisted Reserve Corps (Now known as the United States Army Reserve (USAR)).  On 17 September 1945, after graduating from medical school, he was honorably discharged from the USAR and on the following day, accepted a commissioned as a medical corps first lieutenant in the AUS.  He resigned his commission on 2 April 1946.

4.  On 9 February 1953, he accepted an appointment as a captain in the Air Force Reserve (USAFR).  He entered active duty on 27 June 1953 and served until he was honorably released from active duty (REFRAD) on 26 June 1955 and was transferred back to the USAFR.  In April 1956, the applicant sent a letter to the Department of the Air Force requesting information regarding his drilling with an Army Reserve Unit in Tuskegee, Alabama, due to the unavailability of a USAFR unit in that area.  In July 1956, a reply was sent to the applicant explaining to him the procedures for requesting to train with a USAR unit and it further explained to him the requirements for attaining retirement eligibility and the need to attain creditable/qualifying years of service each year.  The applicant was employed at the Veterans Administration (VA) Hospital in Tuskegee, Alabama at the time and his records are absent of any further action on the part of the applicant in this regard.

5.  In October 1963, the USAFR sent the applicant a notification that informed him that he had been assigned to the Inactive Status List Reserve Section (ISLRS) due to his nonparticipation.  The notification also explained to the applicant the different means by which he could again engage in participation in order to accumulate satisfactory service for retirement and indicated that it would be the USAFR Center's privilege to assist him in any way possible to achieve an assignment.  

6.  On 26 April 1971, the Department of the Air Force dispatched a notification to the applicant informing him that because he had been in the ISLRS since 1958 and that his maximum service date for mandatory separation was 13 September 1979.  The notification also advised him that he had only completed 6 years and 8 months of satisfactory service and that there was no advantage to him remaining in the ISLRS.  He was informed that he could request to be transferred to the Retired Reserve or be discharged.

7.  On 26 July 1972, a notification of proposed action was dispatched from the Department of the Air Force to the applicant informing him that because he could not complete the minimum creditable years of service prior to reaching his maximum age or years of service, a board of officers would be convened to consider him for discharge.  He was advised that he could submit a statement in his own behalf to be considered by the board or he could submit his resignation. 

8.  On 14 August 1972, the applicant, who at that time was employed as the project director for the Medical College of Ohio, submitted a statement in his own behalf whereas he asserted that there had never been a refusal on his part to serve in an active manner in the Reserve Program, but simply that the opportunities to do so were few and far between.  He further indicated that he was concerned with the mental health of members of the armed forces and that such things as retirement dates were secondary to the need for well trained specialists to assist the armed forces in dealing with the problems it was experiencing.  He also asserted that the matter of his being the oldest captain in rank had troubled him and probably played a real part in his not being aggressive about an active assignment.  He contended that his rank should be commensurate with his professional qualifications and asserted that he should be a colonel.    

9.  On 19 October 1972, a board of officers convened and determined that the applicant should be honorably discharged from all Air Force appointments.  The proceedings were approved on 15 November 1972.  On 24 November 1972, he was honorably discharged.

10.  On 12 April 1977, the applicant accepted an appointment to the USAR as a psychiatrist in the rank of lieutenant colonel.  He was granted 28 years, 5 months and 16 days of constructive credit for promotion purposes.  He was 57 years of age at the time he accepted the appointment and was assigned to a USAR Troop Program Unit (General Hospital) in Inkster, Michigan.  He was promoted to the rank of colonel on 15 March 1978 and was assigned to the same hospital except in Southfield, Michigan.

11.  He requested to be retained in service until age 64 and on 5 April 1984, he was transferred to the Retired Reserve.  He had 14 years, 11 months and 17 days of creditable/qualifying service for Retired pay purposes.

12.  The applicant submitted an application for Retired Pay Benefits (DD Form 108) to the Army Reserve Components Personnel and Administration Center (RCPAC) requesting his Retired Pay to be effective 6 April 1984.  Officials at the RCPAC responded to his application on 15 October 1984 informing the applicant that in order to qualify for Retired Pay at age 60, the law required Reservist to earn at least 50 retirement points per year in order for it to be a creditable year, that he must have served 20 creditable years, that the last 8 years must have been served in a Reserve Component and that he must have served on active duty during World War (WW) I, WWII or the Korean Conflict.  He was further informed that he had only 14+ years of creditable service for Retired Pay purposes.

13.  A review of the applicant's records shows that the applicant was informed in 1972, when he was discharged from the USAFR that he would be unable to attain retirement eligibility by age 60.  Additionally, a review of the applicant's evaluation reports while serving as a USAR colonel, indicate that he participated enthusiastically, despite the probability that he would not be able to receive retirement status or benefits.  There is no evidence to show that he was ever issued a 20-year letter or that he was led to believe that he had 20 qualifying years of service for Retired pay benefits.

14.  Army Regulation 135-180 implements the statutory authority governing the granting of Retired pay to soldiers of the Reserve Components.  It states, in pertinent part, that to be eligible for Retired pay, a person must have attained age 60, have completed a minimum of 20 qualifying years of service and have served the last 8 years of his or her qualifying service as a Reserve Component soldier.  Service creditable as a qualifying year is one in which the Reservist is in an active status and earns a minimum of 50 qualifying points during the retirement year.

15.  That regulation also provides, in pertinent part, that under section 1331(d) of title 10, United States Code (USC), each Reserve component soldier who completes the service required to be eligible for Retired pay at age 60 will be notified in writing within 1 year after he or she has completed that service in the form of a 20-year letter.  A copy of the notification will become a part of the Official Military Personnel File (OMPF). 

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant's contention that he was unjustly denied the opportunity to attain the requisite number of qualifying years of service for Retired Pay purposes, based on existing racial discrimination practices then in effect, is not supported by the evidence of record.   

3.  The evidence of record clearly shows that the applicant was informed several times of the requirements to attain creditable years of service, the means to do so, and was offered assistance if he needed it.  However, the evidence suggests that for many years the applicant chose not to actively participate in the Reserve Components and by the time he did choose to do so, he could not qualify for retirement benefits under the law.  

4.  While it is unfortunate that the applicant does not qualify for retirement benefits for his service, there is nothing in the evidence of record, to include correspondence from the applicant to the Departments under which he served, to suggest that his lack of service or inability to serve was in any way racially motivated.
5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 5 April 1984; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 4 April 1987.  However, the applicant 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.

		___Joann H. Langston___
		        CHAIRPERSON

INDEX

CASE ID	AR2003090340	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040212	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  342	136.0400/USAR RET PAY AGE 60	
2.		
3.		
4.		
5.		
6.