BOARD DATE: 8 September 2016 DOCKET NUMBER: AR20150012386 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 BOARD DATE: 8 September 2016 DOCKET NUMBER: AR20150012386 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. BOARD DATE: 8 September 2016 DOCKET NUMBER: AR20150012386 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 records to reflect he completed all requirements for a non-Regular Reserve retirement at age 60. 2. The applicant states he served honorably both on active duty and in the U.S. Army Reserve (USAR) for over 20 years. He served on active duty from 27 June 1969 through 3 August 1973. He served in the USAR from 4 August 1973 through 3 July 1991. His total service time does not appear on a single document, but rather on several documents that were previously overlooked in his original retirement application at age 60. His retirement is currently pending as of 7 March 2016. He believes his retirement is overdue based on a record oversight. 3. The applicant provides pages 1 and 3 of his DA Form 2-1 (Personnel Qualification Record – Part II), DD Form 214 (Armed Forces of the United States Report of Separation or Discharge) for the period ending on 2 August 1973, and Orders D-07-020400. 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 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 the cases 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. 2. The applicant was born on XX November 1951. He enlisted in the Regular Army (RA) on 27 June 1969. He was discharged on 2 August 1970 for the purpose of immediate reenlistment. He was issued a DD Form 214 crediting him with 1 year, 1 month, and 6 days of net active service this period and zero credit for other service. 3. He enlisted in the RA on 3 August 1970. He was released from active duty on 2 August 1973 and was transferred to the USAR Control Group (Reinforcement). He was issued a DD Form 214 crediting him with: * 3 years of net active service this period * 1 year, 1 month, and 6 days of other service * 4 years, 1 month, and 6 days of total active service 4. He reenlisted in the USAR on: * 1 June 1975 * 19 March 1977 * 20 January 1979 * 4 December 1982 * 14 September 1985 5. His records contain two Department of the Army Reserve Personnel (DARP) Forms 249 (Chronological Statement of Retirement Points), prepared by the USAR Personnel Center (ARPERCEN, currently known as the U.S. Army Human Resources Command (HRC)) on: * 31 January 1987 – crediting him with 15 qualifying years from 4 August 1970 to 3 August 1986; the form shows he did not earn enough creditable points from 4 August 1973 to 3 August 1974 * 30 July 1988 – crediting him with 16 qualifying years from 4 August 1970 to 3 August 1987; the form shows he did not earn enough creditable points from 4 August 1973 to 3 August 1974 6. He again reenlisted in the USAR on 30 June 1988. 7. Orders D-07-020400, issued by the USAR Personnel Center on 3 July 1991, honorably discharged him from the USAR effective the same date. 8. He reached age 60 on XX November 2011. 9. In an advisory opinion, dated 25 May 2016, the Chief, Reserve Component Retirement Branch, HRC, recommended denial of the applicant's request. The HRC official stated a review of the applicant's military records determined he only had 17 years of qualifying military service. Army Regulation (AR) 135-180 (Army National Guard (ARNG) and USAR, Qualifying Service for Retired Pay Non-regular Service), paragraph 2-3, states to be eligible for retired pay at age 60 under Title 10, U.S. Code (USC), sections 12371-12737, a Soldier must have completed a minimum of 20 qualifying years of service. HRC provided a DA Form 5016 (Chronological Statement of Retirement Points), dated 29 May 2016, showing the applicant: * served in the RA from 4 August 1970 to 3 August 1973 * served in the USAR from 4 August 1973 to 3 August 1995 * earned only 15 membership points and no active duty points from: * 4 August 1973 to 3 August 1974 * 4 August 1988 to 3 August 1995 * was credited with 17 years of qualifying service or retirement as of 3 August 1995 10. The advisory opinion was provided to the applicant on 31 May 2016 for acknowledgement/rebuttal. In his rebuttal, dated 7 June 2016, the applicant stated the DA Form 5016 provided by HRC ignored the 14 months of Army service prior to his "short" reenlistment in Germany for voluntary duty in Vietnam on 3 August 1970. It ignored his Delayed Entry Program (DEP) and USAR duty after his honorable discharge on 3 July 1991. He further questions his Reserve active duty time calculation because he pulled many extra days during annual training and approved "man-days." REFERENCES: 1. AR 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records), in effect at the time, prescribed the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers. The regulation stated an annual statement of retirement points would be prepared for all Soldiers regardless of the number of points awarded. The purpose of the statement was to provide a permanent record of the total retirement points a Soldier earned during a retirement year; to tell the Soldier whether he/she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status, and to give the Soldier an opportunity to request correction of errors in the statement. 2. AR 135-180, in effect at the time, implemented statutory authorities governing granting retired pay to Soldiers and former Reserve Component Soldiers. Paragraph 2-8 stated a Reserve Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. Only Soldiers assigned to an active status in a Reserve Component or individuals in active Federal service are authorized to earn retirement point credit. 3. AR 135-180 also stated that active duty was defined as full-time duty in the active military service of the U.S. It included, but was not limited to the following: * Actual duty on the active list * Full-time training duty * Annual training duty * Attendance at a school designated as a service school by law or by the Secretary of the military department concerned while in active military service * Full-time duty performed by an active duty reservist ordered to active duty or active duty for training (with his or her consent) without pay under competent orders requiring performance of such duty; it excluded the following as not creditable as qualifying service, pertinent to this application: * Unassigned Reserve * Inactive Reserve * Inactive Status List of the Standby Reserve * Inactive National Guard Reserve 4. Title 10, USC, sections 12731 through 12740, currently 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. DISCUSSION: 1. There is no available evidence showing the applicant served in the DEP prior to his initial RA enlistment on 27 June 1969. Upon his release from active duty in August 1973, he served continuously in the USAR through several reenlistments until his discharge on 3 July 1991. 2. During his service in the USAR, he did not complete a minimum of 50 retirement points from 4 August 1973 through 3 August 1974 and for each retirement year from 1988 through 1995. He only completed 17 years of qualifying service for Reserve retired pay. 3. By law, a Reserve Soldier must complete a minimum of 20 qualifying years of service (minimum of 50 retirement points each retirement year) to be eligible for retired pay at age 60. 4. During his period of service in the USAR, ARPERCEN prepared two annual statements of retirement points showing he did not earn enough creditable points from 4 August 1973 through 3 August 1974. When he received the statements he had an obligation to himself at that time to query ARPERCEN if he believed any of the statements was incorrect. 5. There is no evidence he completed a minimum of 20 qualifying years of service (years in which he earned a minimum of 50 retirement points for Reserve retired pay at age 60) prior to his 1991 discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012386 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012386 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2