MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                              
	DOCKET NUMBER:   AC98-09710

	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	
	M		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		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:  Retired pay for non-regular (reserve) service.

APPLICANT STATES:  That he was given a commitment by the Army Reserve Total Army Personnel Command (RC-PERSCOM) that he would be given retired pay.  When the AR-PERSCOM later refused to give him retired pay, it violated the provision of law which states that once a reservist is certified as being eligible for retired pay that pay cannot be denied.

In support of his application he submits the documents sent to him by the 
AR-PERSCOM when he was transferred from the USAR Control Group (Reinforcement) to the USAR Control Group (Retired).  He submits his application for retired pay at age 60 and the letters that were sent to him by the AR-PERSCOM confirming receipt of his application and informing him of that application’s status.  He submits the letter from the AR-PERSCOM denying him retired pay, a letter which informs him that in order to receive retired pay he would have to have had 20 years of service in which he earned at least 50 retirement points, the last 8 years of which would have to have been in a reserve component.  That letter then informs him that he had only completed 8 years, 7 months and 6 days of qualifying service.

The applicant then wrote President Clinton claiming that the letter sent to him from the AR-PERSCOM which informed him of the status of his application for retired pay, and the documents sent to him upon his transfer to the Retired Reserve, constituted certification for retired pay.  Therefore, the AR-PERSCOM’s denial of giving him retired pay was in violation of law.  In that letter he also said that the AR-PERSCOM’s contention that he had not earned sufficient retirement points to retire was “ludicrous and totally incorrect.”  He states that he has earned an average of 137 retirement points a year, far more than the 50 needed to qualify for retired pay.  The applicant continued that he is now living below the poverty level due to debilitating illnesses he has suffered and ended his letter by saying “I look forward to your favorable response.”

The applicant then sent a second letter to President Clinton complaining about his first letter being sent to the AR-PERSCOM for response.  In that letter he stated “It is quite clear that Army Regulations and Public Laws are simply guidelines and are not promulgated and enacted as the “cure all” for each and every situation that may come up.  There are, in fact, situations that occur that warrant exceptions to established Regulations and Laws.  My case is one of those situations.  The rigid and narrow thinking people at the US Army Reserve Personnel Command are not sufficiently flexible to think in terms of “warranted exceptions” and then making decisions on that basis.  Rather, they will blindly follow existing Regulations and Laws and never give a thought to the correctness of their decisions.”  He again ends his letter saying “I look forward to your favorable response.”

The Assistant Secretary of Defense, Manpower and Personnel (ASD-MP), then responded to the applicant informing him that of the 16 years he spent in the reserves, 12 were not qualifying for retired pay.  The ASD-MP also explained the amount of retirement points earned only determines the amount of retired pay to be received, not the eligibility for that pay.  Lastly, the ASD-MP informed the applicant that none of the documents sent to him by the AR-PERSCOM constituted a certification of eligibility for retired pay.

The applicant then requested reconsideration of the ASD-MP’s denial of his appeal.  The Acting Principal Deputy Assistant Secretary of the Army, Manpower and Reserve Affairs (DASA-M&RA) responded to that request stating that he found no reason to support his request for retired pay.

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

The applicant’s military records are missing quite a bit of documentation.  From what can be derived from existing documentation and statements made by the applicant himself, he entered on active duty in 1960 in an enlisted status.  He was promoted to staff sergeant, pay grade E-6, and was appointed as a first lieutenant, Adjutant General Corps, on 21 January 1966.

He was promoted to captain on 1 February 1967 and was released from active duty on 7 April 1967, apparently due to financial hardship caused by monetary mismanagement.

He reentered active duty on 8 September 1967 and was recalled back to the United States from Vietnam due to his mother declaring him a sole surviving son.  He released from active duty on 17 January 1968, possibly due to his status as a sole surviving son.

He was discharged from the USAR due to his earning insufficient retirement points on 1 July 1969.

He was re-appointed as a captain, USAR, on 13 July 1971 and was discharged on 11 January 1973 due to his failure to participate in unit training assemblies (drills).

He was re-appointed as a captain on 10 February 1984, was promoted to major in 1987, and remained assigned to the USAR Control Group (Reinforcement) until his transfer to the Retired Reserve on 28 February 1995 due to his failure to be promoted to lieutenant colonel.

Army Regulation 135-180 implements the statutory authority governing what constitutes qualifying service for retired pay for nonregular service in the Reserve Components.  Chapter 2, in pertinent part, states that to be eligible for retired pay, an individual must have attained the age of 60 and completed a minimum of 20 years of qualifying service, the last eight of which are served in a reserve component.  A qualifying year is defined as a year of service during which a Reservist earns at least 50 retirement points.  For service in an active component, a qualifying year of service is a full calendar year consisting of 365 or 366 days, as appropriate.

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

1.  As has been explained to the applicant at the highest levels of the Department of Defense, he does not meet the statutory criteria for receipt of retired pay.  He lacks 12 years of creditable service and lacks 4 years of reserve service.

2.  It is inconceivable that the applicant, an officer of the Adjutant General Corps, did not or does not understand the requirements for receiving retired pay.

3.  The applicant acknowledges his understanding of the retirement laws in his letter wherein he states that laws and regulations are just guidelines in which exceptions can be made.  However, contrary to the applicant’s contention, there are no “exceptions” to laws, unless prescribed in the law or unless a special act of Congress is passed.  The Department of the Army does not have the authority to violate law.

4.  If exceptions could be made, the applicant’s military record would not be such to warrant such meritorious treatment.  After his commission as an officer, he was discharged due to his financial mismanagement.  When he was allowed to return to active duty he was removed from a combat zone and discharged at the height of hostilities because of his status as sole surviving son.  It is noted that no mention of his being a sole surviving son ever surfaced during his previous 7 years of active duty.  When he was assigned to a USAR unit, he was discharged due to his failure to attend drills.  

5.  As for the applicant’s contention that the number of retirement points for which he is credited should in itself qualify him for retired pay, it should be noted that a soldier who serves a 3 year Regular Army enlistment would have almost 22 qualifying years of service if the 1096 points he or she had earned were divided by the 50 points needed to qualify a year for retired pay.  However, the intent of Congress was to provide retired pay for reservists who actively participate in unit training, not to allow those individuals with considerable active duty time to qualify for retired pay for non-regular service.

6.  The applicant’s contention that the letters and documents which were sent to him by the AR-PERSCOM certified his eligibility for retired pay is not true.  Those documents are forms used to honor a reservist upon his or her transfer to the retired reserve, and to acknowledgment and provide status of an application for retired pay.  They are not certification of eligibility for retired pay.  Only one Department of the Army form, a “20 year letter”, is considered to be certification of eligibility for retired pay.  That form was not issued to the applicant.

7.  Since the applicant does not meet the statutory criteria for retired pay only a special act of Congress can now establish his eligibility to receive retired pay.  The Army cannot introduce or pass a special act of Congress.  Only the applicant’s elected representatives can do that.

8.  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

CMF____  IEW_____  MKP____  DENY APPLICATION

                                                         Edmund P. Mercanti  
						Loren G. Harrell
						Director