PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:            30 September 1998                                     
	DOCKET NUMBER:   AC98-08742

	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:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Mr. James M. Alward		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, in effect, that he be issued a 20-year letter, be transferred to the Retired Reserve and authorized retired pay.  He states he meets all the requirements but he received a letter saying he did not.

3.  The applicant was born on 30 December 1936.  He initially enlisted in the     U. S. Marine Corps on 21 July 1954; was relieved from active duty on 18 July 1958 and assigned to the U. S. Marine Corps Reserve; reenlisted in the U. S. Marine Corps on 9 October 1962; and was discharged on 6 October 1975.  While in the Marine Corps he served at least two tours in Vietnam where his awards and decorations included the Vietnam Service Medal with 5 bronze service stars, the Presidential Unit Citation and the Combat Action Ribbon.  He enlisted in the Army National Guard on 10 November 1975.

4.  On or about May 1980, the applicant requested discharge and transfer to the Retired Reserve due to extreme family difficulties caused by the death of his wife.   

5.  On 13 May 1980, an assistant adjutant from the California Army National Guard prepared a short letter through the applicant’s commanders to the State Military Forces forwarding his application for transfer to the Retired Reserve and recommending approval.  The letter notes that the applicant had 25 years,          9 months and 5 days of satisfactory service but makes no mention of the fact that he did not meet the requirement to perform the last 8 years of qualifying service as a member of a Reserve Component in order to be eligible for retired pay at age 60.

6.  The applicant’s commander counseled him in regards to his application for transfer to the Retired Reserve.  However, the commander did not mention the fact of his not meeting the last 8 years of qualifying service in a Reserve Component.

7.  On 1 December 1980, he was transferred to the Retired Reserve in pay grade E-6, after completing over 22 years of qualifying service and over 31 years for longevity pay purposes.

8.  The applicant applied for retired pay on or about July 1996.  On 30 October 1996, he was informed that he was not eligible for retired pay because he did not complete his last 8 years of qualifying service as a member of a Reserve Component.

9.  Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers.
10.  Sections 12731 through 12738 of Title 10, U.S. Code, authorize retired pay for Reserve component military service.  Under this law, a Reserve soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.  In addition, the soldier must have performed the last 8 years of qualifying service while a member of a Reserve Component.  The last 8 years of qualifying service need not be the last 8 years of military service, nor do they have to be continuous.  

11.  The above section was amended by Public Law 103-337, in 1994, to read “In the case of a person who completes the service requirements during the period 5 October 1994 and ending on 30 September 1999 must have performed the last 6 years of qualifying service while a member of a Reserve Component.

CONCLUSIONS:

1.  Because of a family hardship caused by the death of his wife, the applicant did not complete his last 8 years of qualifying service as a member of a Reserve Component.  His last 4 years were served as a member of a Reserve Component, plus he had an additional 2 years of qualifying service earlier in his career.

2.  However, the Board believes that the applicant at the time he requested discharge and transfer to the Retired Reserve in 1980 was improperly counseled by his command regarding his transfer.  The evidence of record shows that he was informed that he would have over 25 years of satisfactory service but not that he would be ineligible for retired pay if his last 8 years were not served in a Reserve Component.  The Board believes that had he been so informed he would have made the decision not to transfer to the Retired Reserve but rather to the inactive Reserve and that later, after the family difficulties due to his wife’ death were resolved, he would have then returned to the active Reserve in order to complete the remaining 2 years of the eligibility requirement.

3.  The applicant completed over 22 years of qualifying years for retirement and over 31 years for longevity pay purposes.  In addition, the current eligibility criteria is temporarily set at the last 6 years served in a Reserve component.

4.  The Board concludes that as a matter of fairness and compassion, and since the applicant served at least two tours in Vietnam where he earned the Combat Action Ribbon and other awards and decorations, the last 2 years of his active 

duty service (19 July 1974 - 6 October 1975) should be changed to Reserve component duty.

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 showing the individual concerned completed his last 8 years in a Reserve Component and is eligible for Reserve retired pay at age 60.

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 his nearest RSO (list enclosed ) as soon as possible to facilitate a smooth transition to retired status.

BOARD VOTE:

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION

                                                                                                                
					              CHAIRPERSON