MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 June 1999                    
	DOCKET NUMBER:   AR1999016303

	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	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Ernest W. Lutz, Jr.		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:  That his records be corrected by revoking his Voluntary Early Retirement Program (VERP) orders and returning him to active duty in the USAR Active Guard/Reserve (AGR) program.  He submits copies of newsletters on the VERP and changes to law governing mandatory removal date (MRD) for Reserve Component officers.

APPLICANT STATES:  That he was not informed about the MRD law change before he submitted his request for the VERP.  He had elected early retirement based on the prior policy of his MRD at age 53.  He would not have selected that option if he had been properly advised.

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

He was appointed a USAR first lieutenant effective 19 June 1975 with prior enlisted and warrant officer service.  His MRD was established as 31 March 1996 based on his date of birth of and his age on commissioning.

The applicant returned to active duty in the AGR program on 1 June 1985.  He continued to serve in that status and was promoted to lieutenant colonel effective 1 June 1992.

On 28 November 1994 the Full Time Support Management Center (FTSMC) published a message to announce the FY95 USAR AGR VERP eligibility and application procedures.  Application dates were 2 January through 1 May 1995.  VERP eligibility was AGR personnel with 15 or more years of active Federal service with release from active duty (REFRAD) no later than 31 August 1995.  The VERP was authorized as part of a total program to restructure the AGR force prior to the conduct of involuntary separation boards.

The applicant applied for VERP approval on 2 January 1995 with a requested REFRAD of 31 August 1995.  In his request he acknowledged that he understood that he could not withdraw his request, once approved, except for an unforeseen medical hardship or to accept a promotion.  His request was approved and retirement orders were issued effective 23 February 1995.

On 4 April 1995 he requested removal from the VERP based on the legislative change for computing his MRD.  He believed that he would now be entitled to remain on active duty until 31 March 2003.  On 6 April 1995 the FTSMC returned his request without action based on the specifications that approved applications couldn’t be withdrawn.  The applicant was transferred to the Retired Reserve effective 31 August 1995 with almost 16 years active Federal service and with entitlement to an immediate retirement annuity.

The newsletter submitted by the applicant, dated April 1995, explains the law change affecting how MRD is determined.  It states that this new provision was enacted in October 1994 and removed the age 53 MRD for lieutenant colonels commissioned after age 25.  It also discussed maximum years of service removal.

Army Regulation 140-10, in effect at the time, provided the policy for removal and transfer of USAR soldiers.  An interim change number I02, dated 14 August 1995, provided that length of service removal would be accomplished 30 days after completion of 28 years of service as a commissioned officer without regard to age at appointment.  Additionally, removal for maximum age would be accomplished on the last day of the month when they reach age 60.

Army Regulation 635-100, in effect at the time, provided policy for the separation of officers from active duty.  The regulation provides that a commissioned officer in the grade of lieutenant colonel or below will be released from active duty 30 days after completion of 28 years of service.  The regulation goes on to state that years of service for those appointed after age 25 will be that period of time by which the age of the officer exceeds 25 years or age 53.

Army Regulation 600-8-24 was published on 21 July 1995 with an effective date of 1 November 1995.  Although this regulation replaced AR 635-100 it specifically stated that any action initiated under AR 635-100 would continue to be processed until completion under provisions of that regulation.

In an opinion to this Board (COPY ATTACHED) the Full Time Support Management Directorate (FTSMD) reiterated the provisions of the regulations in effect at the time of the applicant’s voluntary early retirement.  They note that, although the provisions of computing MRD were changed prior to his release from active duty and retirement, the provisions for computing his maximum active duty service did not change.  They recommend denial of his request to return to an AGR status.

In an opinion to this Board (COPY ATTACHED) the Office, Chief Army Reserve (OCAR) noted concurrence with the FTSMD opinion and that denial of the applicant’s request to withdraw his VERP application was not a capricious act and was in accordance with law and regulation.  The OCAR does note however, that the applicant was selected for promotion to colonel by a board that adjourned 16 August 1995, 15 days before his retirement date.  They posit that if the applicant had known about the MRD law change and that he could have been selected for promotion to colonel he would have requested transfer to the Ready Reserve.  This would have allowed him to remain in an active status until 28 February 2003 and draw Reserve retired pay at the higher rate of a colonel.  The OCAR recommends returning the applicant to a Ready Reserve status and reinstatement on the colonel promotion list.  The applicant was provided copies of the advisory opinions with an opportunity to respond.  No response was received within the suspense provided.
DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinions, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The change in the law affecting the applicant’s MRD had no effect on his date of removal from active duty based on his age at commissioning.  As a lieutenant colonel with over 25 years USAR service the applicant knew, or should have known, the difference between maximum active duty service dates and MRD.

3.  Additionally, the Board does not believe that the applicant would have elected transfer to the Ready Reserve in order to retire at age 60 as a colonel and forgone 7 years of retirement pay.

4.  The applicant's voluntary retirement was accomplished in compliance with applicable laws and regulations with no indication of procedural errors that would tend to jeopardize his rights.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

5.  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

__jlp___  __tap___  __ewl___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999016303	
SUFFIX		
RECON		
DATE BOARDED	19990617	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY) 	
REVIEW AUTHORITY		
ISSUES         1.	136.01	
2.		
3.		
4.		
5.		
6.