IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150011107 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150011107 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150011107 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, in effect, that his time in the U.S. Army Reserve (USAR) be corrected to show he received a qualifying year for the period of 12 May 1979 through 28 September 1980, and that he is authorized a non-regular Reserve retirement at age 60. 2. The applicant states, in effect, that: a. His entire time spent in the USAR was never documented by the Army through no fault of his own. This error is unjust and he is being denied his retirement and benefits as a punishment that he does not deserve. b. In January 2008, he was told by, what appears to be the U.S. Army Human Resources Command (HRC), that he would not be receiving retirement pay on his 60th birthday on 3 April 2008 because he only had 13 years of military service, which is wrong. c. He has provided documents that prove that he was in a USAR company, and the months he served should be added to his total service time. d. He also had problems with the U.S. Air Force Reserve and they gave him credit for the time he served once he provided proof of their error. e. He has been fighting this problem with no help from the military. This is an injustice to him and his family, who have been fighting alongside him. He has provided a name from HRC in Fort Knox, KY, who has been helping him. He and his family have sacrificed so many years in the military and he wants credit for his time served to receive his retirement and benefits. f. It has taken him over 7 1/2 years to try and correct this injustice and it has just been getting worse. He has exhausted all administrative remedies available. The only document he could not obtain was a copy of his retirement orders from the Texas National Guard that was sent to him in 1993. 3. The applicant provides: * a self-authored letter * a letter from the 757th Eight Equipment Maintenance Company, subject: Acceptance of 2nd Lieutenant [applicant], dated 18 April 1979 * Orders 57-3781-04, dated 25 April 1979 * Travel Orders, dated 5 May 1979 * Orders 75-9, issued by Headquarters, U.S. Army Third Reserve Officers’ Training Corps (ROTC) Region, dated 4 May 1979 * a letter from the 757th Maintenance Company, subject: Receipt for Annual Training Orders, dated 12 May 1979 * a letter from U.S. Army Third ROTC Region, Senior Program, dated 17 May 1979 * DA Form 2496-1 (Disposition Form), dated 1 July 1979 * Multiple Purpose Correspondence Form, dated 13 July 1979 * Orders 11-91732, issued by the Office of the Adjutant General (OAG), dated 14 November 1979 * Memorandum For Record, subject: [applicant], dated 7 December 1979 * a letter from the OAG, U.S. Army Reserve Components Personnel and Administration Center (RCPAC), subject: Selection for Active Duty, dated 25 April 1980 * DA Form 1506 (Statement of Service for Computation of Length of Service for Pay Purposes), dated 1 October 1980 * Defense Finance and Accounting Service Form 702 (JUMPS-Army Leave and Earnings Statement (LES)), covering period 1 June 1979 to 31 October 1980 * RCPAC Orders 11-91732, dated 14 November 1979 * DA Form 977, Retired Reserve Certificate, dated 4 September 1993 * Information paper from the HRC, Human Resources Center, Processing Unit Section Chief, dated 11 February 2015, with NGB Form 23B (Army National Guard Retirement Points History Statement) * Email, subject: [applicant], dated 9 February 2015 * DA Form 5016 (Chronological Statement of Retirement Points), dated 13 January 2016 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 provides copies of his LESs from 1 June 1979 to 31 October 1980. a. The LESs show that from 12 May 1979 to 11 May 1980 he earned 50 inactive duty for training (IDT) retirement points and that he was awarded 15 membership points for this period resulting in an accumulated 74 points, earning 1 qualifying retirement year. b. The LESs further show that from 12 May 1980 to 27 September 1980 he earned 12 IDT points. 3. A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was separated from the ARNG effective 1 October 1992 and transferred to the USAR Control Group (Reinforcement). 4. On 4 September 1993, the applicant received a Retired Reserve certificate from the Army. 5. On 11 February 2015, the HRC Processing Unit Section Chief provided the applicant with a copy of his NGB Form 23B, dated 9 February 2015. This statement: a. covers his service from 9 August 1968 to 1 October 1992; b. shows he was credited with 50 IDT and 15 membership points for the retirement year 12 May 1979 through 11 May 1980, and credit for 1 qualifying retirement year; c. shows he was credited with 12 IDT, 15 membership and 226 active duty points for the retirement year 12 May 1980 through 11 May 1981, and credit for 1 qualifying retirement year; d. shows he was credited with earning 17 years, 2 months, and 25 days of qualifying service for non-regular retirement purposes as of 1 October 1992; and e. shows that all listed retirement points are verified by showing a "V" in the verification status (VS) column. 6. A DA Form 5016, dated 13 January 2016, covers service from 12 May 1987 to 11 May 1994. REFERENCES: 1. Army Regulation 135-180 (Army National Guard and Army Reserve – Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing granting retired pay to Soldiers and former Reserve Component Soldiers. Chapter 2 of the version in effect at the time states to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60 and completed a minimum of 20 years of qualifying service. 2. Title 10, U.S. Code, Chapter 1223 (Retired Pay for Non-Regular Service), Section 12731 (Age and Service Requirements) provides, in pertinent part, that a person is entitled, upon application, to retired pay if the person is age 60 and has performed at least 20 years of qualifying service. While a qualifying year is determined to be a year in which a minimum of 50 retirement points have been credited for a reservist, it is a full year (365 or 366 days, as applicable) for a member of the Regular Army. 3. Army Regulation 140-185 (Army Reserve - Training and Retirement Point Credits and Unit Level Strength Accounting Records) in effect at that time set responsibilities and procedures to establish and maintain retirement records prescribing the types of training and activities for which retirement points are authorized. Paragraph 1-4 provides the criteria for establishing or changing the retirement year, the retirement year once established will not change as long as the member has continuous service in an active status in a reserve and/or a regular component. It will change when there is a break in active status. 4. Army Regulation 140-185 currently in effect identifies the DA Form 5016 as a statement that provides a permanent record of the total retirement credit earned during an anniversary year, at the time of his service known as retirement year. Informing Soldiers whether they have earned sufficient points for a qualifying year for retirement. 5. National Guard Regulation 680-2 (Automated Retirement Points Accounting Management) currently in effect sets responsibilities and procedures to establish and maintain retirement records, establish the anniversary year, determine service requirements to qualify for retirement for non-regular service. It identifies the NGB Form 23B as the prescribed form for retirement point accountability and a listing of Military Membership Status Identifier (MMSI) codes. DISCUSSION: 1. The applicant contends that he was not credited the appropriate amount of points for duty performed during the period 12 May 1979 through 28 September 1980. 2. On 11 February 2015, HRC provided the applicant an NGB Form 23B that reflects his entire military retirement points history including points earned for duty performed during the period of concern. Based on the evidence he provided and other evidence, he was properly credited with 2 qualifying years of service for non-regular retirement purposes for the period 12 May 1979 through 11 May 1981 as reflected on the NGB Form 23B. This form shows that all listed retirement points are verified by showing a "V" in the VS column. 3. The evidence of record further shows the applicant was appropriately credited with earning 17 years, 2 months, and 25 days of qualifying service. 4. The applicant provides a Retired Reserve certificate, dated 4 September 1993. However, there is no evidence and he did not provide any to show he has completed 20 qualifying years to receive a non-regular Reserve retirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011107 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011107 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2