MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            8 April 1999 
	DOCKET NUMBER:   AR1999017780

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Ms. Barbara J. Ellis		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 retirement points be calculated under the 
“4-hour rule” instead of the “2-hour rule.”  Upon recalculation of his retirement points under the 4-hour rule, he requests that he be credited with qualifying years of service for retired pay for the years 1993, 1995 and 1996.

APPLICANT STATES:  That the application of the 2 hour rule in calculating his retirement points has invalidated 3 years of creditable service and will result in his involuntary separation due to his failure to be selected for promotion to lieutenant colonel upon his second consideration.  If his retirement points are calculated on the 4-hour rule, it will give him an 18 year lock-in (sanctuary) so he may remain in an active status and qualify for retired pay at age 60.  He states that his command should have been notified that it wasn’t eligible to apply the 4-hour rule in 1993 so they could have altered its drill configuration.

In support of his application he submits retirement point summaries and 
DA Forms 1380, Individual Performance of Reserve Duty Training, which shows that he had frequently worked increments of 1, 2 and 3 hours writing and reviewing reports and projects while working as an Individual Mobilization Augmentee (IMA).

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

He was commissioned as an officer and entered on active duty on 8 June 1977.  He was awarded the areas of concentration of combat engineer and nuclear weapons researcher and was promoted to major.  He was honorably released from active duty and transferred to the USAR Control Group on 29 September 1992.  He was separated at his own request with $95,682.46 in Special Separation Benefit (SSB).

Army Regulation 140-185 prescribes the criteria for awarding retirement points.  
Table 2-1 prescribes exactly what types of attendance/duty is required to earn retirement points and under which rule (2 or 4 hour) those points will be awarded.  Rule 3 states that individuals who attend a 2-hour unit training assembly(ies) with an RTU or IMA detachment in a non-pay status is credited points under the 2-hour rule.

Army Regulation 135-180 implements the statutory authority governing what constitutes qualifying service for retired pay for non-regular 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.  While it is unfortunate that the applicant thought that all of his service as an IMA qualified for retirement points under the 4-hour rule, it did not.  It would appear reasonable to presume that an officer of his grade and years of service would ascertain what type of credit he would receive for his service, especially in light of the short segments of time he was claiming.

2.  To give the applicant credit for his service under the 4-hour rule would be unfair to those reservists who are being properly credited for like service under the 2-hour rule.

3.  It is noted that the applicant has already completed a career in the Regular Army, having received close to $100,000.00 in severance pay for his 15 years of service.

4.  Retired pay for reserve service at age 60 was enacted to provide a retirement for career reservists, not for active duty personnel who only need a few years of creditable service to achieve retired pay eligibility.  That is why law requires reservists to serve their last 8 years in a reserve component to qualify for retired pay at age 60.

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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999017780	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990408	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	135.02	
2.		
3.		
4.		
5.		
6.