RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 June 2005 DOCKET NUMBER: AR20050001558 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. Alan Chin Analyst The following members, a quorum, were present: Mr. Raymond J. Wagner Chairperson Mr. Kenneth W. Lapin Member Ms. Delia R. Trimble 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, in effect, that his ARPC Form 249-2-E (Chronological Statement of Retirement Points) be corrected or adjusted to show completion of 20 years of qualifying service to allow receipt of retired pay. 2. The applicant states that his service reflected for Retirement Year Ending (RYE) 30 August 1965 should be creditable as a full year for the purpose of receiving retired pay at age 60. He states that early in his reserve career he questioned the apparent incongruity of the entry for RYE 30 August 1965. He contends that his ARPC Form 249-2-E reflects qualifying service of 8 months and 4 days and that the 247 points reflected clearly exceeds the 50 points required to qualify as a “good” retirement year for retired pay purposes. He claims that at that time he was informed that the service was credited as a full year for retired pay purposes. 3. The applicant provides a copy of his ARPC Form 249-2-E (Chronological Statement of Retirement Points), dated 7 February 2003; U.S. Army Reserve Personnel Center (USARPC) memorandum, Subject: Retention in an Active Status of the USAR, dated 27 October 1994; and USARPC letter, reference reply to his DD Form 108, Application for Retired Pay Benefits, dated 29 December 2004. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error or injustice which occurred on 30 August 1965, the date he claims he should have been credited with a full retirement year for the purpose of receiving retired pay at age 60. The application submitted in this case is dated 19 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 show that he enlisted in the Regular Army on 27 December 1963 for a period of 3 years. On 30 August 1965 he was discharged to accept appointment as a Reserve commissioned officer in the rank of second lieutenant (2LT/O-1). He was promoted through the ranks to lieutenant colonel (LTC/O-5). 4. The applicant provided a copy of a memorandum from the Chief, Transition Branch, Soldier Support Division, USARPC, dated 27 October 1994, Subject: Retention in an Active Status of the USAR. The letter states, “As of 30 August 1993, you are credited with 18 years of qualifying Federal service for retired pay benefits at age 60.” The letter also stated that because he was credited with at least 18 years of qualifying Federal service for retired pay he was eligible to extend his mandatory retirement date (MRD) to allow time to reach the 20 years of qualifying service necessary to receive retired pay benefits. 5. The applicant accepted the extension of his MRD and over the period of his extension he earned 2 additional years towards the 20 years minimum requirement for receipt of retired pay. He transferred to the Retired Reserve on or about 12 February 1997. 6. The applicant’s ARPC Form 249-2-E, dated 7 February 2003, shows that he had completed 19 years, 8 months, and 4 days of qualifying years for retirement. There is no record to show that he was issued, nor was he eligible to have issued, a notification of qualification for retired pay at age 60 (20-Year Letter). 7. In the Spring of 2003 the applicant submitted his formal application to receive retired pay at age 60. The retirement application is not in the available records. 8. On 29 December 2004, the Chief, Transition and Separation Branch, USARPC sent a letter to the applicant in reply to his application for retired pay. This letter states, in part, that an audit of his military records show that he completed 19 years, 8 months, and 4 days of qualifying service for retirement. Accordingly, he is ineligible to receive retired pay. 9. Paragraph 7-12 of Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), provides guidance on exceptions for removal of Reserve Soldiers from an active status. It states, in pertinent part, that officers having 18 or 19 years of qualifying Federal service for retired pay will not be removed without their consent. Officers who meet this criteria on the date removal is required will be retained to complete 20 years. Retention is authorized until the date on which 20 years of qualifying Federal service for retired pay is completed, or three years from required removal date (applies to officers having at least 18 but less than 19 years of qualifying service), or two years from required removal date (applies to officers having at least 19 years but less that 20 years of qualifying service). 10. Paragraph 1-4 of Army Regulation 140-185 (Training and Retirement Point Credits and Unit level Strength Accounting Records), provides guidance for establishing or changing the retirement year (RY) for U.S. Army Reserve Soldiers. It states, in pertinent part, that after 1 July 1949, the retirement year beginning date will be the date of transfer to the Reserve Component upon release from active duty. Example: If a Soldier initially enlisted in the Regular Army on 1 April 1970 and was transferred to an active Reserve Component on 31 July 1973, the Soldier’s RY would be 31 July-30 July. 11. Sections 12731 through 12739 of Title 10, US Code, authorize retired pay for Reserve Component (RC) 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 [emphasis added]. The last 6 years must be served as a RC Soldier. 12. 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 contends that he should have been credited with a full retirement year for RYE 30 August 1965 for the purpose of receiving retired pay at age 60. 2. Based on the USARPAC memorandum that the applicant received, dated 27 October 1994, he was led to believe that he had acquired 18 years of qualifying Federal service and only needed to complete two more years for the purpose of meeting the eligibility requirements to receive retired pay at age 60. He acquired the additional 2 years within the prescribed timeframe. However, based on a review of his ARPC Form 249-2-E, he actually only had 17 years, 8 months, and 4 days of qualifying years for retirement prior to completion of the additional 2 years. This resulted in him only having 19 years, 8 months, and 4 days of qualifying service for retired pay. 3. It is also apparent that the applicant did not understand the difference between accrual of creditable time as a Regular Army Soldier versus a Reserve Soldier. The applicant was a Regular Army Soldier during RY 27 December 1964 through 30 August 1965. As a Regular Army Soldier on active duty he was correctly awarded one creditable retirement point for each calendar day he served during RYE 30 August 1965. This day for day count equals 247 days or 8 months and 4 days of qualifying service for that partial year. However, for a Reserve Soldier, the requirement is for accrual of a minimum of 50 points per retirement year, a complete 12 month period, in order for that year to qualify as a creditable or “good” year for retirement purposes. 4. The evidence failed to show that he earned 50 or more points during his RYE of 30 August 1986. He has sufficient excess retirement points that can be moved to his RYE of 30 August 1986 to show that year as qualifying for retirement. The distribution would not involve awarding additional retirement points or entitlement to any additional pay. 5. After redistribution of sufficient excess retirement points to his RYE of 30 August 1986, a corrected ARPC Form 249-2-E should be issued to show that he completed 20 years of qualifying service for retired pay with entitlement to enroll in the Survivor Benefit Plan (SBP). BOARD VOTE: __RJW___ __KWL_ __DRT__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL 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 redistributing excess retirement points from his prior qualifying RYEs to his RYE of 30 August 1986 and showing this RYE as qualifying for retirement. 2. That upon completion of the administrative action required by Paragraph 1, above, that the Army Human Resources Command–St. Louis recalculate the retirement points of the individual concerned, issue him a corrected Chronological Statement of Retirement Points, and certifying eligibility for non-regular retired benefits at age 60 with entitlement to enroll in SBP. __/s/ Raymond J. Wagner_ CHAIRPERSON INDEX CASE ID AR20050001558 SUFFIX RECON DATE BOARDED 20050616 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION GRANT REVIEW AUTHORITY MR. SCHNEIDER ISSUES 1. 135.0000 2. 3. 4. 5. 6.