PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  2 September 1999
	DOCKET NUMBER:   AR1998013081

	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. Loren G. Harrell		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. James M. Alward		Member	
	Mr. Thomas N. Kuhn		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests reconsideration of his previous request for eligibility for early retirement and transfer to the Retired Reserve.

3.  The applicant states that he had over 15 years of qualifying service and he was involuntarily removed from his IMA position when it was abolished.  He was not offered any other positions and he could not find one.  He provides a copy of his agency notification on the abolishment of their IMA positions in support of his application.

4.  The applicant’s request was previously considered and denied by the Board on 11 February 1998.  The Memorandum of Consideration for the earlier review shows that the denial was partially based upon an opinion provided by the Office, Chief Army Reserve (OCAR) that there was insufficient evidence that the applicant had obtained the minimum required 15 qualifying years of service for early retirement authority or that he had been involuntarily separated as a result of inactivation.

5.  The applicant’s available military records show that on 13 January 1992 he was serving as an IMA with 2nd Army Headquarters in the grade of E-8.  On 13 January 1992 he was informed that all IMA positions in his staff element would be abolished.  He was advised to seek assistance from his career advisor for another assignment.

6.  Effective 9 February 1993 the applicant was reassigned from his IMA position to the Individual Ready Reserve (IRR).  The reason cited on the order is at the request of the proponent agency.  Effective 12 December 1995 he was discharged from the USAR.  On 12 April 1999 he was 60 years of age and eligible to begin receipt of retired pay if otherwise eligible.

7.  In a 28 August 1997 memorandum to this Board, the Army Reserve Personnel Command (AR-PERSCOM) updated and corrected his retirement points history to show that as of 11 November 1991 he had 15 qualifying years of service for retirement.

8.  In a 23 January 1998 advisory opinion to this Board the OCAR noted that Title 10, USC, section 12731a provided the authority for the Secretary concerned to authorize early retirement to Reserve Component soldiers provided they have completed between 15 and 20 years of service between 1 October 1991 and 1 October 1999.  It also provided that the soldier must be in an authorized position on 23 October 1992 which was subsequently eliminated as a result of 

force structure actions.  Additionally he must be qualified to continue Ready Reserve participation and not refuse assignment to another valid position.  The applicant was provided an opportunity to respond to the advisory opinion but did not respond with the time allotted.

CONCLUSIONS:

1.  Considering all the facts in this case, to include the evidence of record and that provided by the applicant, he is entitled to be transferred to the Retired Reserve with eligibility for retired pay under the early retirement authority provided by Title 10, USC, section 12731a.

2.  The applicant had 15 qualifying years of service on 11 November 1991; was involuntarily removed from his IMA position as a result of force structure changes after 23 October 1992, and was eligible for continued Ready Reserve participation.

3.  Had all the facts in this case been known prior to 12 April 1999 it is reasonable to assume that he would have been in receipt of retired pay since that date and is entitled to back retired pay from that original eligibility date.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

	a.  revoking the discharge order of the individual concerned and issuing an order transferring him to the Retired reserve effective 12 December 1995;

	b.  issuing him a 15 year letter and placing him on the retired list upon reaching age 60 pursuant to the provisions of the Reserve Component Early Retirement Program;

	c.  providing him authorization to participate in the survivor benefit program (SBP); and

	d.  providing the necessary documentation to the Defense Finance and Accounting Service (DFAS) to authorize receipt of retired pay from the date of his original eligibility of April 1999.

BOARD VOTE:  

__MP__  ___JA__  __TK______  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Margaret K. Patterson      
		        CHAIRPERSON

INDEX

CASE ID	AR1998013081	
SUFFIX		
RECON		
DATE BOARDED	19990902	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	136.05	
2.		
3.		
4.		
5.		
6.