RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            9 December 2003                         
	DOCKET NUMBER:    AR2003090348

	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:

	Mr. Mark D. Manning		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Eloise C. Prendergast		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 entitlement to non-regular retired pay at age 60.  

2.  The applicant states, in effect, that he was just recently notified that he was eligible to receive retired pay by the Army Reserve Personnel Command (ARPERSCOM) on 15 April 2003.  

3.  The applicant provides a copy of a 15 April 2003 ARPERSCOM, a Retirement Point Accounting System (RPAS) summary, dated 14 April 2003, and a copy of a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 
29 December 1976, issued by Headquarters, Fifth United States Army (FUSA).  

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice that occurred when he turned age 60 and became eligible to receive retired pay on 14 April 1989.  The application submitted in this case is dated 21 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 he served in the United States Army Reserve (USAR) from 8 June 1952 through 7 July 1980.  

4.  On 29 December 1976, the applicant was notified, in a letter from the Assistant Chief, Officer Branch, Reserve Personnel Division, FUSA), that he had completed the required years of service and would be eligible to receive retired pay upon application at age 60.  

5.  Orders Number 125-20, dated 26 June 1980, issued by Headquarters, FUSA, relieved the applicant from assignment to the Ready Reserve and transferred him to the Retired Reserve, effective 7 July 1980, in the rank and pay grade of lieutenant colonel/0-5 (LTC/0-5).  

6.  An RPAS summary prepared by ARPERSCOM on 14 April 2003 confirms that the applicant earned 2308 retirement points and 22 years of qualifying service for retired pay at age 60.  

7.  On 15 April 2003, the Chief, Transition and Separations Branch, ARPERSCOM, informed the applicant that a review of his records resulted in an adjustment to his retirement points and as a result he was credited with 22 years and 29 days of qualifying service, and he was eligible to be placed on the Retired List on 14 May 1989.  However, based on the six year statute of limitations for filing claims, his case could not be approved by ARPERSCOM, and he would have to apply to this Board to gain relief.  

8.  Title 10 of the United States Code, section 12731 provides the legal authority and age and service requirements to receive non-regular retired pay at age 60.  It states, in pertinent part, that members of the Reserve Components who complete at least 20 years of qualifying service are eligible to receive retired pay upon application at age 60.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that the applicant completed the qualifying service necessary to receive non-regular retired pay upon reaching age 60 on 
14 May 1989, as evidenced by the 15 May 2003 letter from ARPERSCOM retirement officials.  

2.  It is also clear that as a result of administrative error on the part of the Department, the applicant’s eligibility to receive retired pay was not confirmed by Army retirement officials until a complete review was completed at ARPERSCOM on 14 April 2003.   

3.  In view of the facts in this case, it would be appropriate to correct the applicant’s record to show he was placed on the Retired List and authorized to receive retired pay upon reaching age 60 on 14 May 1989.  Further, given confirmation of the applicant’s eligibility for retirement was just recently made by ARPERSCOM, it would be unjust to impose the six year barring statute in this case.  Therefore, in the interest of equity and justice, it would be appropriate to provide the applicant all back pay and allowances due as a result of this action.  

BOARD VOTE:

_MM___  __ECP__  __RJW___   GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 he was placed on the Retired List and authorized to receive retired pay on 14 May 1989, and by providing him all back pay and allowances due as a result.  

		Mark D. Manning
		CHAIRPERSON

INDEX

CASE ID	AR2003090348	
SUFFIX		
RECON		
DATE BOARDED	2003/12/DD	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1989/05/14	
DISCHARGE AUTHORITY	AR 140-10	
DISCHARGE REASON	Retirement at Age 60	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  338	136.0000	
2.		
3.		
4.		
5.		
6.