IN THE CASE OF: BOARD DATE: 14 January 2016 DOCKET NUMBER: AR20150004145 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his military records to show he met the requirements for a non-regular retirement. 2. The applicant states, in effect, that due to no fault of his own he was not able to obtain 50 qualifying points per year to meet the requirements for a non-regular retirement. He served over 25 years in the service in both the active and inactive Reserve. He believes that if his total number of retirement points earned is divided by his estimated 25 years of service he would then have 20 years of qualifying service for retirement pay. The retirement laws have changed over the years. He tried wholeheartedly to earn 20 years of qualifying service for non-regular retirement, but time ran out. He would like his record reviewed to see what amount of retirement pay he would be eligible to receive. 3. The applicant provides: * self-authored letter and military history * U.S. Army Human Resources Command (HRC) Information Paper, dated 5 February 2015 * DD Form 214 (Report of Separation from Active Duty), ending 18 September 1974 * AHRC Form 249-E (Chronological Statement of Retirement Points), dated 8 July 2014 * various commendations, military orders, training certificates, evaluations letters of appreciation, military school diplomas, and honorable discharge certificates CONSIDERATION OF EVIDENCE: 1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant reenlisted on 20 September 1978 in the U.S. Army Reserve (USAR). He also acknowledged in Annex A to his DD Form 4 (Enlistment or Reenlistment Agreement-Armed Forces of the United States) that all of the conditions of his enlistment were read and explained to him by the officer or guidance counselor prior to being administered the Oath of Enlistment. Page 1 of this document contains the following statement: To qualify for retirement benefits at age 60 a member must achieve 20 qualifying years of Federal service and be a member of a Reserve Component during the last 8 years of military service. A qualifying year of service for retirement requires that the member accrue a minimum of 50 points in a retirement year. I understand that my years of service in the Individual Ready Reserve will not qualify me for retired pay at age 60 unless I accrue at least 50 points for each retirement year and each of these years, when added to other qualifying years of Federal service, amount to a total of 20 years. 3. His AHRC Form 249-E shows he: * served in the Regular Army from 19 September 1972 to 18 September 1974 * served in the USAR from 19 September 1974 to 22 April 1998 * has 9 years of qualifying service for retirement * earned 1,608 total creditable points 4. He provides a letter, dated 5 February 2015, from the Processing Unit Section Chief, HRC Service Center, Fort Knox, KY, informing him that he did not qualify for receipt of retired pay because he had not completed 20 qualifying years of service. It further informed him that a USAR Soldier must earn a minimum of 50 retirement points per year to be credited as a qualifying year of service. 5. He provides a timeline and letter wherein he states that he: a. spent two years on active duty and later started training with the USAR in Winthrop, MN in 1974. He was never told how retirement points were accumulated; b. was not able to complete a qualifying year of service in 1975 due to the demands of his civilian job and his school commitments; c. transferred to the Individual Ready Reserve (IRR) in 1981 after completing 4 years of qualifying service; d. he completed numerous Army correspondence courses, the Basic Noncommissioned Officer Course (BNCOC), and he was promoted to staff sergeant (SSG) in April 1983; e. tried to transfer back to a USAR unit but he found out he was no longer in the system. He made many attempts to correct this between 1984 and1989 and after getting assistance from the Inspector General, he was allowed to reenlist in the IRR, and received 15 membership points for each year, even though he was "lost," due to no fault of his own. This error prevented him from participating in training for 6 years; f. had his security clearance reinstated and was called to active duty in support of the Gulf War for two weeks in 1991; g. was assigned to the 79th Military Police Company, Rochester, MN on 1 November 1992 and later attended the Advanced NCOC. The unit helped him put all his points together and advised him of what needed to be done next in his military career. He was informed that as a SSG, with only 9 good years, he would not be able to remain in the service long enough to complete 20 qualifying years of service or get promoted to sergeant first class (SFC); h. was advised to reenlist in the IRR for 5 years in order to get promoted. In November 1993 he reenlisted in the IRR. He was subsequently promoted to SFC. He tried unsuccessfully to find a USAR unit in southern MN for the next 2 years; i. hopes that with all of his years of dedicated military service to the United States, he would be eligible for some benefits. There are 2 years that he missed the required 50 points for a good year by 5 and 8 points. In other years he was short by 13 and 19 points; j. contends that if not for those years of not being able to perform any active duty training, due to no fault of his own, he would have more than enough years to qualify for retirement benefits. If his total of 1,608 points were divided by 25.5 years of service, it would equal over 63 points per year; and k. was recently given a copy of the USAR Retirement Information Guide which lists the criteria for early retired pay. It shows that there are some situations for retired pay with less than 20 years of service. He does not have 15 years of qualifying service, but a review of his service shows that he tried to have 20 good years, but time ran out. 6. The applicant provides numerous awards, orders, evaluations, and training documents from his military personnel file. 7. Army Regulation 135-180 (Retirement for Non-regular Service) implements statutory authorities governing the granting of retired pay for non-regular service to Army National Guard, Army National Guard of the United States or the USAR. To be eligible for retired pay at or after the age of 60, an individual need not have a military status. The person must have completed a minimum of 20 years qualifying service. If a person is determined to be physically unfit and has 15 years of qualifying service, and less than 20 years, he or she could quality for an early retirement based on 15 years of service. 8. Title 10, U.S. Code, sections 12731 through 12739 authorizes 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. 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 requests correction of his military records to show he met the requirements for a non-regular retirement. 2. After prior service, he reenlisted in the USAR on 20 September 1978 and at that time he acknowledged in Annex A of his contract that he had been informed that he must accrue a minimum of 50 points in a retirement year to qualify for retirement benefits at age 60. Therefore, his statement that he was not aware of this requirement is not supported by the evidence. 3. At the time of the applicant's discharge from the USAR he had completed 9 years of qualifying service for non-regular retirement. He admits he was unable to complete 20 years of qualifying service due to various circumstances which were beyond his control. However, the record is void of evidence, and he did not provide evidence, that would corroborate that any of the situations he described unjustly prevented him in whole or in part from participating in USAR training. 4. Further, there is no evidence to show that any of his qualifying service was omitted. His suggestion to divide his total points by the total number of years he served allowing him to receive a favorable consideration of 20 qualifying years of service is in contradiction to law and regulatory guidance. As such, there is no apparent error or injustice. The applicant does not meet the eligibility for non-regular retirement requirements established by law. Thus, he is not eligible for retired pay. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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. ___________X___________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150004145 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004145 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1