PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            14 April 1999                  
	DOCKET NUMBER:    AC97-08733
				    AR1999015025

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Karen L. Wolff		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Thomas B. Redfern, III		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.  In effect, the applicant requests that his transfer to the Retired Reserve in 1994 be declared null and void, and of no force or effect, and that he instead be transferred to the Individual Ready Reserve (USAR Control Group (Reinforcement) retroactive to 1994; and that he receive special separation benefits.  

3.  The applicant states that he was erroneously transferred to the Retired Reserve instead of the IRR, as he had requested.  This has been confirmed by the 98th Division (Training), his major Reserve command.  He states that because of downsizing and the fact that he had completed 20 years of service, he was automatically transferred to the Retired Reserve.  He had no recourse.  This action effectively terminated any benefits he might have had by being in the IRR.  Because this action was involuntary, and because it terminated his military career, he requests consideration for special separation benefits.  

4.  The applicant’s military records show that the applicant was a Reserve soldier assigned to a unit of the 98th Division (Training), with 22 years of qualifying service for retired pay on 31 May 1994 (his retirement year ending (RYE) date).  

5.  On 15 October 1994 the applicant requested transfer to the USAR Control Group (Reinforcement) to be effective 1 November 1994.  That request was approved by his commanding officer.

6.  On 27 October 1994 Headquarters, 98th Division (Training) published an order reassigning the applicant to the USAR Control Group (Retired), effective              1 November 1994.

7.  On 20 September 1996 the United States Army Reserve Command (USARC) in Atlanta, in response to a congressional inquiry, informed a member of congress (MC), that the applicant had indeed been improperly transferred to the Retired Reserve, instead of the IRR, and that the applicant must petition this Board for relief.  That command recommended that the applicant’s order transferring him to the Retired Reserve be amended to show that he was instead transferred to the IRR effective 1 November 1994, and that the applicant be credited with qualifying years of service for retirement from 1 November 1994 until the date this Board grants relief.

8.  In the processing of this case, an advisory opinion (COPY ATTACHED) was obtained from the office of the  Chief of the Army Reserve.  That office recommended that the applicant’s record be corrected to show that he was transferred to the IRR effective 1 November 1994, and that he be granted qualifying service for retired pay (50 points per year) for the time that he spent in the Retired Reserve.  That office, however, stated that the applicant did not qualify for selected Reserve transition benefits (SRTB), in that there was no evidence to show that he lost his troop program unit (TPU) position due to inactivation, reorganization, or relocation, and that the message implementing the SRTB states that soldiers transferred at their own request are not eligible to receive SRTB.  The applicant was furnished a copy of this advisory opinion for information and possible rebuttal.  He has not responded.  

9.  The 18 August 1993 DA message implementing the selected Reserve transition assistance program, states in pertinent part, that transition benefits and assistance programs apply to selected Reserve members and their families when those members are involuntarily separated from the selected Reserve during the drawdown period (23 October 1992 through 20 September 1995).  A Reserve component soldier will be considered to be involuntarily separated unless the soldier is discharged or transferred from the selected Reserve as a result a variety of reasons, one of which is transfer at his own request.
  
10.  Army Regulation 135-180 implements statutory authorities governing the granting of retired pay to soldiers and former Reserve Component soldiers.  Paragraph 2-1 of that regulation states, in pertinent part, that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of his qualifying service as a Reserve component soldier.  Paragraph   2-8 of the aforementioned regulation describes qualifying service, as pertains to this case, as service performed as an enlisted person in an active status in a Reserve component or in active federal service. After 30 June 1949, a reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service.

11.  Paragraph 2-10 provides instructions for computation of service and states, in effect, that (1) before 1 July 1949, one point will be given for each day of active duty, and 50 points will be awarded for each year of service as a Reserve component soldier.  A proportionate part of 50 points for any fraction of a year will be credited; (2) after 30 June 1949, one point will be given for each day of active duty, 15 points will be awarded for each year of membership in an active status in a Reserve component, and one point for each authorized participation in drills or period of instruction.  Not more than 60 points per year, including membership points, will be credited for inactive duty training in any one retirement year. 

12.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for Reserve soldiers.  Paragraph 1-4 of that regulation provides the criteria for establishing or changing the retirement year (RY), and states, in effect, that soldiers in an active Reserve status on                 1 July 1949 will have a retirement year from 1 July through 30 June annually.  After 1 July 1949, the retirement year will be the date of initial entry or reentry (after a break in service) into a Reserve component, or date of transfer to the Reserve component upon release from active duty, or date of transfer from an inactive Reserve status to an active Reserve status.  The retirement year once established will not change as long as the soldier has continuous service in a Reserve and/or regular component.
 
CONCLUSIONS:

1.  The applicant was erroneously transferred to the USAR Control Group (Retired) instead of the USAR Control Group (Reinforcement) on                          1 November 1994.

2.  Consequently, the order that transferred him to the USAR Control Group (Retired) is null and void and of no force or effect; and the applicant should be reassigned to the USAR Control Group (Reinforcement) effective                          1 November 1994.

3.  In all fairness to the applicant he should be credited with qualifying service for retired pay (50 points per year) for each year he year he remained in the Retired Reserve, computed from his RYE day of 31 May, i.e., RY 940601 through 980531, and continuing up to and including the date of the decision by this Board. 

4.  Notwithstanding the applicant’s erroneous reassignment to the Retired Reserve, he did voluntarily request transfer to the USAR Control Group (Reinforcement).  He, therefore, is not entitled to selected Reserve transition benefits.

5.  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 by: 
 
     a.  showing that the order transferring the applicant to the USAR Control Group (Retired), effective 1 November 1994 is null and void and of no force or effect; 

     b.  reassigning the applicant to the USAR Control Group (Reinforcement) effective 1 November 1994; 

     c.  crediting the applicant with qualifying years of service for retired pay (50 points per year) for each year he year he remained in the Retired Reserve, computed from his RYE day of 31 May, i.e., RY 940601 through 980531, and continuing up to an including the date of the decision by this Board.     

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

BOARD VOTE:  

__klw___  __aao___  ___tbr__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC97-08733/AR1999015025	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990414	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1. 135.00		
2.  128.00		
3.		
4.		
5.		
6.