PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           19 November 1998                   
	DOCKET NUMBER:   AC98-08398

	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. Fred N. Eichorn		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Ms. Barbara J. Ellis		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  The applicant requests that her transfer to the Retired Reserve be rescinded and she be allowed to continue in the U. S. Army Reserve Troop Program Unit program to complete her 20 years towards retired pay eligibility.

3.  The applicant states she was not counseled on the consequences of the transfer nor was she allowed to consult with counsel.

4.  The applicant’s military records show that she enlisted in the Regular Army on 18 April 1978.  She was honorably separated on 4 June 1982 and transferred to the active Reserve.  

5.  In September 1994, the applicant’s commander requested she be medically evaluated to determine if she was fit for duty, apparently for a medical condition involving her back.  The medical board proceedings are not available.

6.  On 17 June 1995, the applicant was notified that she had been found medically unfit for retention in the U. S. Army Reserve.  She requested a waiver of her medical condition and, if the waiver was not approved, transfer to the Retired Reserve.

7.  On 30 August 1995, the Army Medical Review Authority determined that the applicant was not qualified for retention in the Reserve.

8.  The applicant was transferred to the Retired Reserve effective 9 October 1995.  She had completed 17 years of qualifying service.  It is not known if the applicant was awarded severance pay.

9.  In the processing of this case, an advisory opinion was obtained from the Army Reserve Personnel Command, Transition and Separation Branch.  The opinion noted that the applicant had been counseled concerning the medical discharge proceedings and the consequences of her election of options and recommended that the orders transferring her to the Retired Reserve not be revoked.

10.  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 shall have performed the last eight years of qualifying service while a member of a reserve component.

11.  Title 10. U.S. Code, section 12731a is the temporary special retirement qualification authority.  A revision dated 5 October 1994 provided 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 and who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, and upon the request of the member, may be transferred to the Retired Reserve.  Notification to the U.S. Army Reserve of this benefit was not given until 1 July 1996.

CONCLUSIONS:

1.  On or about June 1995, medical board proceedings determined that the applicant was unfit for retention in the U. S. Army Reserve.  At that time, she had over 17 years of qualifying service towards reserve component retired pay at age 60.  She had served over eight years of her qualifying time in a reserve component.  She was transferred to the Retired Reserve at her request, but without eligibility for retirement benefits at age 60.  

2.  A revision to Title 10. U.S. Code, section 12731a provides retirement eligibility for individuals in the applicant’s situation.  However, notification to the U.S. Army Reserve of this benefit was not given until 1 July 1996.

3.  The advisory opinion is just in recommending that the orders transferring the applicant to the Retired Reserve not be revoked; however, she is entitled to retired pay at age 60 under the revised section 12731a, Title 10 U. S. Code.

4.  The applicant is not entitled to both disability severance pay and Reserve Retirement pay at age 60.  

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.  by issuing her a certificate of eligibility to show that she is entitled to Reserve retired benefits at age 60; and

     b.  by reviewing her finance records to determine if she received severance pay and, if so, recoup the total amount awarded.

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:  

FNE____  TAP____  BJE_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON