RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 August 2005 DOCKET NUMBER: AR20050001006 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 Mrs. Nancy L. Amos Analyst The following members, a quorum, were present: Mr. Paul M. Smith Chairperson Ms. Yolanda Maldonado Member Mr. Leonard G. Hassell Member 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 that he be granted a 20-year Reserve retirement. 2. The applicant states the Puerto Rico Army National Guard (PRARNG) released him from the service 43 days before his expiration term of service with over 19 years of service, and they refused to allow him to reenlist without any justification. He was sent a Retirement Points Summary Statement which contained a calculation difference in 12 out of 20 line items and shorted him 32 points. His service time calculation had been changed continually for unknown reasons. 3. The applicant states the PRARNG never notified him to report to his unit for discharge and immediate reenlistment. They prepared and issued the NGB Form 22 (Report of Separation and Record of Service) without his signature. He had more than 18 years of service and the PRARNG violated Army Regulation 135-175 by separating him. 4. In a 22 March 2004 letter to the PRARNG Office of the Inspector General, the applicant stated his problem started during February 1976. He had been issued a medical certificate dated 20 February 1976 indicating a temporary medical restriction for all work activities due to injuries received in his civilian job. He notified his first sergeant, who told him to go home and report back after the doctor released him for duty. During the short time he was recuperating, his enlistment supposedly expired and the first sergeant did not notify him to return to the unit for discharge and reenlistment. His enlistment expired in April 1976 but he was discharged in February 1976. He returned to duty about a month later (March 1976). That was when his first sergeant told him he was being separated because he did not report to the unit for discharge and reenlistment. 5. The applicant went on to state the first sergeant claimed he did not know how to contact the applicant. However, the applicant had never moved, his two sons were in the same unit and the first sergeant knew them, and the last paycheck they sent him after his separation was received at his regular mailing address without any problems. His first sergeant also told him not to worry about his retirement because he had completed his 20 years. The first sergeant told him he would receive a letter shortly authorizing him the retirement benefits. After a month went by without receiving the letter, he visited the PRARNG headquarters. There, he was told he did not qualify for retirement and he was put out of the service because his mailing address and residence changed without notifying the ARNG. He was also told units trying to contact a member were supposed to send a certified letter and if it is not delivered the evidence is placed in the member's records. However, when he asked for the evidence he was told it was not in his records. They provided him his NGB Form 22, which showed he had served 19 years, 1 month, and 18 days of service, and his separation orders. He stated it was evident Army Regulation 135-178, paragraph 3-4b was violated. 6. The applicant provides the 18 enclosures listed on the attachment to the DD Form 149. Enclosure 18, the "Medical Certificate, dated 2/20/76," is illegible. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error or injustice which occurred on 20 February 1976. The application submitted in this case was received in this office on 21 January 2005. 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 limitations 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 military records are not available to the Board. This case is being considered using reconstructed records, which primarily consist of the documents provided by the applicant. 4. The applicant was born on 10 March 1933. He was inducted into the Army on 17 July 1952 and was released from active duty on 16 July 1954. A Statement of Service dated 1 November 1988 shows he was transferred to the U. S. Army Reserve; a Retirement Points Summary Statement shows he was in the ARNG. The 1 November 1988 Statement of Service, his NGB Form 22 for the period ending 20 February 1976, and the Retirement Points Summary Statement show he last enlisted in the ARNG on 4 April 1970. 5. On 20 February 1976, the applicant was honorably discharged from the ARNG and as a Reserve of the Army. His discharge orders indicated the reason for separation was change of residence. His NGB Form 22 for the period ending 20 February 1976 showed he had completed a total of 19 years, 1 month, and 18 days of service for pay purposes. 6. A Statement of Service dated 12 February 1987 indicated the applicant completed 18 years, 10 months, and 13 days length of service (qualifying service for a Reserve retirement) and 19 years, 1 month, and 11 days of service for pay purposes. 7. A Statement of Service dated 1 November 1988 indicated the applicant completed 17 years, 8 months, and 29 days of qualifying service for a Reserve retirement). 8. The applicant's Retirement Points Summary Statement dated 15 January 2004 shows he completed 16 years, 10 months, and 17 days of qualifying service for a Reserve retirement. This summary shows he did not earn 50 points for the full retirement years ending (RYEs) 16 July 1955 and 16 July 1958 or for the partial RYE 10 September 1965. He did complete 50 points for the partial RYE 20 February 1976. 9. The applicant had made numerous changes to the total point calculations on the Retirement Points Summary Statement dated 15 January 2004. All of the changes were the results of mis-adding his inactive duty, membership, and active duty points. He did not make any changes to the two complete and one partial RYE for which he did not earn 50 points. On an unknown date, the Retirement Points Summary Statement was corrected to incorporate all of the applicant's changes. None of the changes led to an additional qualifying year. 10. In the processing of this case, an advisory opinion was obtained from the National Guard Bureau (NGB). The advisory opinion noted a Statement of Service dated 12 February 1987 indicated the applicant had 18 years, 10 months, and 13 days of qualifying service for a Reserve retirement and 19 years, 1 month, and 11 days of pay purposes. It noted another Statement of Service dated 1 November 1988 indicated the applicant had 17 years, 8 months, and 29 days of qualifying service for a Reserve retirement. It noted The Adjutant General informed the applicant's veteran's representative on 12 June 1990 he had 17 years, 8 months, and 29 days of qualifying service for a Reserve retirement. 11. The advisory opinion noted that National Guard Regulation 600-200, paragraph 8-2c states the Chief, NGB is the approval authority for the involuntary discharge of Soldiers from the Army National Guard of the United States and the Reserve of the Army who are within 2 years of completing the service required to qualify for retired pay. The advisory opinion noted the PRARNG did not conduct a separation board for the applicant nor did it request the Chief, NGB's approval for the involuntary separation. 12. The advisory opinion noted Army Regulation 135-178, paragraph 3-4 states when a Soldier is being separated from the Army National Guard of the United States involuntarily, the notification procedure is required in writing, stating the Soldier has the right to submit a statement on his or her behalf and/or seek assistance from legal. The regulation required that reasonable efforts be made to furnish copies of the notice to the Soldier through personal contact or via registered or certified mail. The applicant alleged he was never notified in person nor by certified mail even though his two sons were in the same unit, nor did he receive any registered or certified mail. 13. The advisory opinion recommended approval of the applicant's request due to the PRARNG not following proper procedures when separating him. 14. On 29 August 2005, the NGB informed the Board analyst they did not have the applicant's records when they prepared the advisory opinion, only the application provided to them by the Case Management Division, ABCMR. 15. A copy of the advisory opinion was provided to the applicant for comment. He concurred with the advisory opinion. 16. Army Regulation 135-175, version effective 1 March 1970 and in effect at the time, paragraph 2-1 stated the authority to approve the discharge of enlisted members of the Army National Guard was delegated to officers of the Army National Guard designated by the State Adjutant Generals concerned. Paragraph 3-6a listed a number of reasons that could provide the basis for discharge of U. S. Army Reserve enlisted members. One reason was when enforcement procedures could not be applied because the member had failed to furnish an address through which he could be reached and efforts to locate him had been unsuccessful. Paragraph 9-2a stated that, except for cases being processed under paragraph 3-6, the appointment authority would notify the enlisted member in writing, if his whereabouts were known, of the specific allegations on which the proposed action was based. Paragraph 9-2b stated it was not necessary that the privileges set forth in paragraph 9-2a be extended to members being considered for discharge for any of the reasons set forth in paragraph 3-6. 17. National Guard Regulation 600-200, the version in effect at the time, was not available. 18. Army Regulation 140-158 (Training and Retirement Point Credits and Unit Level Strength Accounting Records), the current version and the version in effect at the time, stated that annual statements of retirement points (1) give a permanent record of the total retirement points a Soldier earns during a retirement year; (2) tell the Soldier whether he or she earned sufficient points to be credited with a qualifying period for retired pay; and (3) give the Soldier an opportunity to request correction of errors in the statement. 19. Sections 12731 through 12740 of Title 10, U.S. 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. 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 applicant's contentions have been carefully considered. Unfortunately, his records are not available and in the absence of evidence to the contrary it is presumed his separation was accomplished in accordance with law and regulations applicable at the time. 2. It is noted that the advisory opinion appears to quote from current regulations instead of the regulations in effect at the time. The advisory opinion noted National Guard Regulation 600-200, paragraph 8-2c states the Chief, NGB is the approval authority for the involuntary discharge of Soldiers from the Army National Guard of the United States and the Reserve of the Army who are within 2 years of completing the service required to qualify for retired pay. However, the preponderance of the available evidence shows the applicant was not within 2 years of completing the service required to qualify for a Reserve retirement. 3. It is acknowledged that the Statement of Service dated 12 February 1987 indicated the applicant completed 18 years, 10 months, and 13 days of qualifying service for a Reserve retirement. 4. The Statement of Service dated 1 November 1988, however, indicated the applicant had 17 years, 8 months, and 29 days of qualifying service for retired pay, as did The Adjutant General when it informed the applicant's veteran's representative on 12 June 1990 he had 17 years, 8 months, and 29 days qualifying service for a Reserve retirement. 5. More importantly, the applicant's Retirement Points Summary Statement showed he completed only 16 years, 10 months, and 17 days of qualifying service for a Reserve retirement. Moreover, the applicant did not question his years of service on that Retirement Points Summary Statement. He merely noted that his retirement points had been added incorrectly for a number of those RYEs that were already qualifying years for retirement. 6. The advisory opinion noted the PRARNG did not conduct a separation board for the applicant nor did it request the Chief, NGB's approval for the involuntary separation. Since the preponderance of the evidence shows the applicant did not have 18 years of qualifying service for a Reserve retirement, the Chief, NGB's approval was not required. Moreover, since the applicant's records are not available, there is no evidence of record, and neither the applicant nor the advisory opinion provided any, to show a separation board was not conducted or that one was even required. 7. Regrettably, at this time there is insufficient evidence on which to grant the relief requested. 8. Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 February 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 19 February 1979. 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 timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __pms___ __ym____ __lgh___ 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. __Paul M. Smith_______ CHAIRPERSON INDEX CASE ID AR20050001006 SUFFIX RECON DATE BOARDED 20050830 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY Mr. Chun ISSUES 1. 136.03 2. 3. 4. 5. 6.