PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           13 January 1999                   
	DOCKET NUMBER:   AC98-12143
				   AR1998013636

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas N. Kuhn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Ms. Margaret V. Thompson		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 that he be entitled to special separation pay or that he receive the pay he was “cheated” out of for 4 months of drill and the 1997 annual training cycle as well as the associated retirement points.

3.  The applicant states the U. S. Army Reserve Command (USARC), through the 89th Regional Support Command (RSC), told him on 30 September 1996 that he was beyond his mandatory removal date (MRD) and would have to be retired effective that date.  He tried to tell the 89th RSC that his MRD was not until        25 January 1997 but was told in turn that nothing could be done about it at this point.  The 89th RSC also told him that he could elect either transfer to the Individual Ready Reserve (IRR) or to the Retired Reserve and receive a one-time transition bonus.  He elected transfer to the Retired Reserve, but when he never received the bonus, he was told by the Army Reserve Personnel Center (ARPERCEN) that he was not eligible for it because of his break in service.

4.	The applicant’s military records show that he was born on 18 August 1943.  He was inducted into the Army on 13 May 1965 and was released from active duty on 29 March 1967.  He completed his Reserve obligation on 12 May 1971 and had a break in service until 25 January 1974.  He enlisted in the Selected Reserve on 26 January 1974 and had continuous service until he was transferred to the Retired Reserve.

5.  On 22 March 1993, the applicant received his notification that he was eligible for retired pay at age 60 (his 20-year letter).

6.  The evidence of record shows that the applicant performed 13 days of annual training (At) in Fiscal Year (FY) 1994 – 1 day in April, 6 days in August and 6 days in September.  He performed 11 days of AT in FY 1995 – 7 days in March and 4 days in April.  He performed 15 days of AT in FY 1996 – 9 days in April and 6 days in September.  Also in FY 1996, he consistently earned 4 retirement points per month for unit training assemblies.

7.	 His Personnel Qualification Record prepared on 9 February 1996 showed his pay entry basic date (PEBD) as 26 January 1968.  As an E-8 may remain in the Selected Reserve until he/she has reached 29 years of service, this would give the applicant an MRD of 25 January 1997.

8.  On 30 September 1996, the applicant was counseled by his unit that he was being involuntarily transferred from the Selected Reserve and one of his options was to elect transfer to the Retired Reserve with special separation pay.  He elected this option.  The 89th Regional Support Command published orders on  30 September 1996 transferring the applicant to the Retired Reserve due to maximum length of service effective 30 September 1996.  The orders noted that he was eligible for special separation pay.  Those orders were revoked on           7 October 1996 for an unknown reason but were republished on the same date with no notable change in substance.

9.  Conversation with the Army Reserve Personnel Command (AR-PERSCOM, formerly ARPERCEN) indicated that they had determined that the applicant was not eligible for special separation pay because he did not have 29 years of service on 30 September 1996.  He did not reach his MRD until 25 January 1997; therefore his release from the Selected Reserve on 30 September 1996 was not due to maximum length of service.  AR-PERSCOM stated that the special separation pay program ended on 30 September 1996.

CONCLUSIONS:

1.  The applicant’s personnel records adequately and accurately reflected his PEBD as 26 January 1968, making his MRD 25 January 1997.  For an undetermined reason, USARC erroneously listed his PEBD as 13 May 1995.

2.  For an undetermined reason, USARC notified the applicant on 30 September 1996 that he was beyond his MRD and that he must be transferred effective     30 September 1996.  This grossly unfair notification procedure allowed no time for the applicant to protest that his correct MRD was actually 25 January 1997, so he elected transfer to the Retired Reserve with special separation pay.  His separation orders stated he was eligible for special separation pay.

3.  When the applicant inquired of ARPERCEN when he would receive his special separation pay, he was informed that since his MRD was not                 30 September 1996, he had not been involuntarily transferred due to maximum length of service and therefore he was not eligible for special separation pay.  If he had been properly transferred to the Retired Reserve on 25 January 1997 due to attaining maximum length of service, he would not have been eligible for special separation pay since that program ended on 30 September 1996.

4.  By being erroneously transferred to the Retired Reserve on 30 September 1996, the applicant lost the opportunity to earn a total of 16 retirement points, 4 each for the months of October, November and December 1996 and January 1997.  The evidence of record from the three previous years does not indicate that he would have taken his annual training during this 4-month period.

5.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

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

a.	revoking orders 281-38 dated 7 October 1996 transferring the applicant to the Retired Reserve effective 30 September 1996;

b.	 publishing new orders showing that the applicant was transferred to the Retired Reserve effective 25 January 1997 by reason of attaining the maximum length of service;

c.	showing the applicant earned 16 additional inactive duty points and the appropriate number of membership points for the period October 1996 – January 1997; and

d.	paying the applicant the appropriate pay he lost by missing drill periods during October 1996 – January 1997 by being erroneously transferred to the Retired Reserve effective 30 September 1996.

2.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

__TNK__  __WTM__  __MVT__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Thomas N. Kuhn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC98-12143/AR1998013636	
SUFFIX		
RECON		
DATE BOARDED	19990113	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	113.00	
2.		
3.		
4.		
5.		
6.