MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            30 June 1999                  
	DOCKET NUMBER:   AR1999012475

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. John P. Infante		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  Retirement credit for time served from October 1995 to December 1996.

APPLICANT STATES:  In April 1995 it did not appear he would have 20 years of service before his expiration term of service (ETS) and his commander requested that he be granted a waiver and extended for two years until he reached age 60 on 28 October 1995.  The extension was allowed, but a waiver was not issued.  He submits a memorandums dated 19 April 1995 and 9 April 1997, his Oath of Extension of Enlistment or Reenlistment and a Record of Retirement Points dated 17 January 1997.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was born on 28 October 1935.  He enlisted in the Regular Army on 2 December 1954 and was discharged on 29 November 1957 and was transferred to the USAR.  He served in the USAR from 30 November 1957 to 
16 November 1961.  

He had a break in service from 1961 to 1976 and he did not earn retirement credit for the years of 1957 to 1961 and 1978 to 1982.

He enlisted in the USAR 7 February 1976 and served until 13 October 1978.  He enlisted again on 3 March 1981 to 4 January 1982 and 7 December 1982 and through continuous reenlistments served until 6 December 1995.

He completed an Oath of Extension on 1 April 1995 for 2 years past his ETS of 30 May 1995.  His new ETS would have been 30 May 1997.  

His mandatory removal date (MRD) was 31 October 1995, based on age 60.

His records do not show he was granted a waiver for retention in the Reserve beyond age 60.  He was discharged from the California Army National Guard effective 3 December 1996.  

He completed 18 years of qualifying service for retired pay at age 60 on his MRD.

Title 10, United States Code, section 510(b), provides that, except as otherwise provided by law, the Secretary concerned will prescribe physical, mental, moral, professional and age qualifications for enlistment of persons as Reserves of the armed forces under his jurisdiction.

Army Regulation 140-10 prescribes policies and procedures for removal of individuals from the Reserve.  This regulation specifies that Reserve enlisted members, not sooner removed for another reason, will be removed when they reach age 60.  The regulation further specifies that soldiers erroneously retained will be removed when the error is discovered.  Removal will be effective on the removal action date and will not be retroactive.  Retirement points earned after the date removal was required will not be credited.  This applies even though actual removal is effective at a later date.

Army Regulation 140-111 prescribes the policies and procedures for reenlistment in the Reserve.  This regulation specifies that to be eligible to reenlist in the Reserve, a member must be able to qualify for retired pay by age 60, and that except for those personnel granted a waiver, no provision of this regulation was designed or intended to permit an enlisted member of the Reserve to remain in an active status beyond the last day of the month in which the member attained age 60.  This regulation also specifies that the ARPERCEN can grant a waiver to a member of the Reserve, who is otherwise eligible for immediate reenlistment or extension, and who cannot accrue the necessary service to qualify for retired pay by age 60, when it has been determined that there is an implied or actual moral obligation, based on long service in the Reserve, to permit the member to remain in the active Reserve to qualify for retired pay.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In view of the circumstances in this case, the applicant is not entitled to retirement credit for time served from October 1995 to December 1996 and a retroactive waiver.  He has not shown error, injustice, or inequity for the relief he now requests.  He knew, or should have known, of the long-standing provisions that he could not serve past age 60.  He has indicated he was aware of this provision in 1995.  He also knew of his extensive number of years he did not earn retirement credit for nonparticipation and breaks in service.

2.  His contention that his commander requested an extension and a waiver has been noted by the Board; however, no waiver for continuation past age 60 was granted and the applicant was aware of this at the time. 

3.  The Board further notes that the applicant was advised that he would not be able to complete 20 good years for retirement prior to reaching age 60; and further, when his enlistment was terminated on 3 December 1996, pertinent law and regulations stipulate that he could not receive credit for retirement beyond his MRD. 

4.  The Board concludes even though the applicant continued to serve even though he was never granted a waiver, he knew he would not be permitted to be retained and that he would be discharged at his MRD, age 60.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

gdp_____  aao_____  jpi______  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998012475	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 June 30	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.