PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:                              
	DOCKET NUMBER:   AC9805012

	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	
	M .		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		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 restoration of retirement points.

3.  The applicant states, in effect, she was erroneously transferred to the Retired Reserve and then it was determined she was not eligible for retirement benefits.

4.  The applicant’s military records show that she initially enlisted in the Regular Army on 5 September 1979.  She was honorably separated on 2 April 1993 and enlisted in the U. S. Army Reserve on 3 April 1993.

5.  On 19 January 1995, the applicant was counseled that she must be reassigned because her Selected Reserve unit was deactivated or reorganized . She was counseled that she had at least 15 years of qualifying service and that if she were not offered a valid assignment, she could transfer to the Retired Reserve and apply for early qualification for Retired Pay at Age 60 or transfer to the Individual Ready Reserve.  

6.  On 18 March 1995, an assignment to another unit was determined not to be available and she applied for early qualification for retired pay and transfer to the Retired Reserve.  On 21 March 1995, orders were published transferring her to the Retired Reserve.

7.  On an unknown date, the Army Reserve Personnel Center (ARPERCEN), Transition Assistance Management Program (TAMP) office, notified the Major Army Command/State Adjutant General that the applicant was not eligible for early retirement as she did serve six of her qualifying years in the Reserve.

8.  Title 10, U. S. Code, section 12731 provides that a non-regular service member is entitled, upon application, to retired pay if the person is at least        60 years of age; has performed at least 20 years of qualifying service; and, having completed the service requirement during the period beginning on           1 October 1994 and ending on 30 September 1999, shall have performed the last six years of qualifying service while a member of a reserve component.

9.  Title 10, U.S. Code, section 12731a is the temporary special retirement qualification authority.  It provides that, during the period 1 October 1991 through 30 September 1999, a member of the Selected Reserve who has completed at least 15, and less than 20, years of qualifying service may, upon the request of the member, be transferred to the Retired Reserve.  

10.  In the processing of this case, an advisory opinion was obtained from the Office of the Chief, Army Reserve (OCAR).  OCAR determined that the applicant’s rights to information were not met by her command.  She volunteered for early retirement under the assumption that she was qualified to retire with benefits and retirement pay at age 60.  OCAR found no evidence that her command made her aware of the TAMP office’s determination that she did not qualify for an early retirement nor evidence of any attempt to contact her to offer her the other options available.  OCAR recommended that the six year service requirement be waived and she be retained in the Retired Reserve with rights and benefits granted to individuals authorized early retirement.  OCAR recommended her Retired Reserve assignment orders be revoked and new orders issued.

CONCLUSIONS:

1.  After the applicant was separated from the Regular Army, she enlisted in the U. S. Army Reserve and served in a Selected Reserve unit in good faith.  Two years later, through no fault of her own, the unit was inactivated or reorganized and a new unit of assignment was not available.

2.  The applicant was counseled that since she had at least 15 years of qualifying service, one of her options was to be reassigned to the Retired Reserve and apply for early retirement benefits.  She was not informed at this time that one of the requirements to qualify for retired pay at age 60 was to have completed the last six years of qualifying service in a reserve component.  Based upon this lack of information, she elected assignment to the Retired Reserve.

3.  After the applicant had been transferred to the Retired Reserve, she was informed that she was not qualified to receive retired pay at age 60.

4.  In an advisory opinion, OCAR determined that the applicant was misinformed by her command and recommended that the six year service requirement be waived and she be retained in the Retired Reserve with rights and benefits granted to individuals authorized early retirement.

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 95-080-021, dated 21 March 1995, assigning the applicant to the Retired Reserve; and 

     b.  republishing those assignment orders with the following changes:
          (1)  Reason:  Early Qualification for Retired Pay (Invol) (XC); and

          (2)  Additional Instructions:  add j.  The 6-year USAR service requirement for retirement per DOD memo dated 30 Nov 94 is waived, per ABCMR case number AC98-05012.

2.  The Army has an established program to counsel retiring soldiers on the rights, benefits, and privileges afforded as a result of military retirement.  Retirement Services Officers (RSO) are available at most major Army installations to provide a retirement briefing, which includes information on the Survivor Benefit Plan (SBP).  The applicant is advised to contact her nearest RSO (list enclosed ) as soon as possible to facilitate a smooth transition to retired status.

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

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON