PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            11 March 1999                  
	DOCKET NUMBER:   AR1999014953

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Curtis L. Greenway		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 his discharge from the Individual Ready Reserve (IRR) be revoked and that he be allowed to continue to serve in the USAR until he is eligible for retirement.

3.  The applicant states that he had over 18 years of qualifying service for retirement and he should have been retained until he reached 20 qualifying years for retirement.  Applicant’s counsel further states that several units are willing to have him join their organization if he is reinstated.

4.  The applicant’s available military records show that he was appointed a second lieutenant effective 7 June 1976 with 4 years prior active duty in the Air Force.  He was separated from active duty on 1 September 1987 based on his second nonselection for promotion to major. He was appointed a USAR major effective 2 September 1987.

5.  Effective 16 April 1993 the applicant was involuntarily transferred from his unit to the IRR.  On 29 November 1993 he was notified of his first nonselection for promotion to lieutenant colonel for failure to meet the educational requirements.  He received his second nonselection for promotion in the USAR in 1994 and effective 28 February 1995 he was discharged from the IRR for twice failing selection for promotion.

6.  A statement of retirement points prepared in September 1992 shows that in June 1992, his retirement year end (RYE) date he had over 19 years of qualifying service for retirement.  Between June 1992 and June 1993 he had only 48 points recorded which is not considered a qualifying year.  His last good retirement year was from June 1991 to June 1992 when he earned 73 points.

7.  Army Regulation 140-10 provides for the assignment, transfer and separation of USAR personnel.  It states that an officer who twice fails selection for promotion to lieutenant colonel will be discharged unless eligible for and request transfer to the Retired Reserve.  It also states that officers who have over 19 years of qualifying service will be retained for up to 2 additional years in order to attain 20 years.

8.  Army Regulation 135-180 provides the policy of qualifying nonregular service for retired pay.  It states that to be eligible for retired pay an individual must have completed a minimum of 20 years of qualifying service and the last 8 years must have been served in a Reserve component.  The provision for having to serve the last 8 years in a Reserve component was modified by Title 10, USC, section 12731 by substituting 6 years during the period from 5 October 1994 through 30 September 1999.

CONCLUSIONS:

1.  Although the applicant was twice non-selected for promotion to USAR lieutenant colonel he had over 19 qualifying years and he should have been afforded the opportunity to be retained in the IRR for a maximum of 2 years in order to obtain sufficient points to complete 20 qualifying years.  An error occurred when he was discharged.
2.  The Board believes that it would be in the best interest of the Army and the applicant to allow him to be placed in the Retired Reserve instead of returning him to a duty status for another 12 to 24 months.  He has sufficient retirement points in the previous year to transfer to his RYE ending in 1993 to qualify him for retirement.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

a.  by revoking the discharge order of the individual concerned to show that he remained in an active status in the IRR;

b.  by moving two retirement points, as an exception to policy, from his 1991 through 1992 RYE and placing them against his 1992 through 1993 RYE which will provide 50 retirement points for that year and which will also reflect that his last 6 qualifying years were served in the Reserve components;

c.  by transferring him to the Retired Reserve effective 6 June 1995; and

d.  by affording the individual concerned to elect his survivor benefit options in the same manner as if he had elected transfer to the Retired Reserve prior to June 1995.

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

BOARD VOTE:  

__CLA___  __VBC__  _CLG___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Celia L. Adolphi
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999014953	
SUFFIX		
RECON		
DATE BOARDED	19990311	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	136.03	
2.		
3.		
4.		
5.		
6.