PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           9 June 1999                   
	DOCKET NUMBER:   AC82-10426C
				   AR1999014892

	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	
	Mr. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. James P. Steuve		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 correction of his record to show completion of 20 or more years of creditable service for Reserve Retirement pay at age 60.

3.  The applicant states, in effect, that he completed drills during the period of 4 April 1985 and 23 May 1986 sufficient to earn a qualifying year towards his Reserve retirement.  He contends that the submission of his leave and earnings statements and IRS Forms W-2 are prima fascia evidence that he attended drills and completed more service than is reflected on his retirement summation sheet. The applicant also avers that the points for retirement year ending (RYE) 16 May 1972 are incorrect and that he completed at least the minimum 50 points necessary for this year to be counted as a qualifying retirement year.

4.  The applicant’s case is reopened in accordance with the Army Board for Correction of Military Records Reconsideration Project (ABCMR-RP) criteria.  The applicant’s previous reconsideration requests were administratively closed.  The Board’s 12 January 1983 and 21 February 1991 reviews of the applicant’s request are incorporated herein by reference as if wholly set forth. 

5.  The applicant’s military service is summarized as follows:  3 October 1949 to 2 May 1951 Illinois National Guard; 3 May 1951 to 29 September 1955; active duty, Navy; a twelve year break in service; 17 May 1967; commissioned in the Army Reserves as veterinarian, two years active duty (including a tour in Viet Nam); 13 consecutive years of reserve service.  The applicant was discharged 14 June 1982.  At this point the applicant was credited with 19 years 25 days of qualifying service for retirement, with two years of non-qualifying service and a total of 3071 retirement points.

6.  The applicant applied for relief through the Federal court system to overturn the 1982 discharge.  On 28 February 1985, the Federal Circuit Court granted relief and ordered that the applicant’s discharge to be voided, he be reinstated with all rank and privileges and be granted de facto service and points for the period between his discharge and restitution to duty.  He received orders to report for duty with his reserve unit 4 April 1985.  The Government appealed the decision and prevailed.  This resulted in revocation of the orders that returned him to a duty status and he was discharged on 23 May 1986.  The discharge order indicated that the applicant would receive no credit toward retirement for the period of time between the 1982 discharge and his restoration to duty.

7.  On 16 March 1993, the applicant applied for Reserve Retired Pay Benefits and was notified that he did not have the necessary qualifying years of service to receive Retired Pay.  He was reported to have 19 years, 6 months and 11 days of qualifying service with 21 years, 6 months, 10 days for longevity purposes.  His total creditable retirement points were reported as 3099.

8.  On 14 February 1994 the applicant applied to this Board requesting relief by correcting his creditable service calculations for RYEs 16 May 1972 and 15 May 1986.  This request was administratively closed, as was a subsequent request in 1996.  The documentation submitted with these requests was not properly referred to the Board.

9.  The applicant submitted the following items in concert with the administratively closed applications:

a.  copies of leave and earnings statements covering July, August and September 1985;

b.  copies of his 1985 and 1986 IRS Form W-2;

c. copies of JUMPS submissions (DA Form 5359), reflecting drill attendance on June 29-30, July 13-14, August 3-4, September 7-8, October 7-8, November 23-24, December 7-8, January 25-26, February 22-23, March 8-9, and April12, 13, 26 and 27; and,

d.  two copies of Chronological Record of Military Service (DARP Form 249-3). The Form 249-3, issued 4 April 1984, shows 19 years 25 days of qualifying service for retirement, two years of non-qualifying service and a total of 3071 retirement points.  The Form 249-3, issued 16 March 1993, shows the applicant’s last period of service as 1 December 1985 to 15 May 1986, and shows him to have 19 years, 6 months and 11 days of qualifying service with 21 years, 6 months, 10 days for longevity.  His total creditable retirement points are reported as 3099.

CONCLUSIONS:

1.  The applicant has submitted no evidence to support his contention that retirement points for RYE 16 May 1972 was incorrectly calculated.

2.  The current situation was unjust.  Aside from the de facto credits and prior to the decision on the appeal, the applicant served and earned the qualifying points and could have been issued a Letter of Notification for Entitlement to pay at age 60.  

3.  The documentation shows that the applicant was ordered to return to his drill unit on 4 April 1985 and that he served through 3 April 1986.  This constitutes a full year for Reserve membership that entitles the applicant to 15 membership points.  The 49 day interim before his 23 May 1986 separation warrants 2 additional membership points.

4.  The applicant has documented that he attended drills on 20 days (40 drill periods), thereby, entitling him to 40 inactive duty points during RYE 3 April 1986 and 4 days, (8 drill periods) for an additional 8 inactive duty points for the next year.

5.  The inclusion of the aforementioned points and credit brings the applicant’s qualifying time to 20 years 1 month and 19 days with accumulated retirement points to 3136.  Thus he is entitled to receive of Reserve Retired pay at age 60.

6.  In view of the foregoing findings and conclusions, the interest of justice would be served by correcting 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 voiding the 23 May 1986 discharge currently held by the individual and by transferring him to the Retired Reserve on 24 May 1986;

b.  by showing that he completed 20 years qualifying years for Reserve Retired Pay at age 60 with 3136 retirement points; and,

c.  showing that individual concerned is entitled to receive Reserve Retired Pay as of 28 March 1993. 

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 concerned and by transferring him to the Retired Reserve on 24 May 1986.

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

BOARD VOTE:  

__EB___  __RJW___  __JPS__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Elizabeth Buchanon____
		        CHAIRPERSON

INDEX

CASE ID	AC82-10426C
AR1999014892	
SUFFIX		
RECON		
DATE BOARDED	19990609	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES        1.	338	
2.	341	
3.		
4.		
5.		
6.