MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            31 March 1999     
	DOCKET NUMBER:   AR1999020402

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis W. Barbee		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Walter T. Morrison		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:  In effect, that he be granted 20 qualifying years of service in order to be eligible for retired pay at age 60. 

APPLICANT STATES:  That he is disabled and he earned retirement pay.  He was never informed that he had to be in the Reserves for 6 years in order to be eligible for retirement after his release from the service. 
   
EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered the Army in 1962, served for approximately two years, and was transferred to the Army Reserve after his release from active duty.  He reenlisted in 1966 and served continuously on active duty until 1979, to include service in Vietnam.  On 4 June 1976 he was notified by DA that he had been barred from reenlisting under the qualitative management program (QMP), because of nonjudicial punishment under Article 15, UCMJ, marginal performance as reflected on his evaluation reports, and below average MOS evaluation scores.  He appealed and that appeal was denied on                          17 September 1976.  He was discharged on 14 February 1979.

He reenlisted in the Army on11 July 1980.  On 9 December 1980 he was relieved for cause from his duties as a career counselor/reenlistment NCO by the commander of the 1st Battalion, 68th Armor, the unit to which he was assigned at Fort Riley, Kansas.  

On 27 April 1982 he again received a DA bar to reenlistment under the QMP.  He was discharged at Fort Dix, New Jersey, on 1 July 1983. 

The applicant enlisted in the Army Reserve for three years on 2 July 1983.  His enlistment document shows that he had 17 years, 11 months, and 6 days of total active military service, and 1 year, 10 months, and 7 days of total inactive military service at the time of his enlistment.  As part of his enlistment agreement he signed a Certificate and Acknowledgement of Service Requirements (DA Form 4688/1 through DA Form 4688/3), in which he stated that he understood:  “To qualify for retirement benefits at age 60, I must achieve 20 qualifying years of Federal service and be a member of the Reserve Component during the last 8 years of military service.  A qualifying year of military service for retirement requires the member to accrue a minimum of 50 points in a retirement year.  My years of service in the Individual Ready Reserve will not qualify me for retired pay at age 60 unless I accrue at least 50 points for each retirement year and each of these years, when added to other qualifying years of Federal service, amounts to a total of 20 years.”

On 1 April 1988 the applicant was reassigned from his Reserve troop program unit to the Army Reserve Control Group (Reinforcement) at St. Louis because of his unsatisfactory participation in unit training assemblies.
The applicant was discharged from the Army Reserve on 4 April 1995. 

A 14 September 1998 chronological record of military service shows that the applicant had 20 years, 9 months, and 24 days of qualifying service for retired pay at age 60.  That record shows that after he was discharged from the Regular Army on 1 July 1983, he enlisted in the Army Reserve, had one qualifying year of service in the Reserve from 2 July 1983 until 1 July 1984, did not have a qualifying year from 2 July 1984 to 1 July 1985 and had one qualifying year from 2 July 1985 until 1 July 1986.  Those years that he served in the Reserve after    1 July 1986 were not qualifying years of service.

On 16 October 1998 a member of congress (MC) forwarded a copy of a letter from the applicant, in which the applicant stated that he was never told that he had to be in the Reserve for 8 years to receive retirement pay, but was informed that he would receive retirement pay at age 60.  He states that he should receive a check for all, or some, of the time he served.  Had he known this, he would not have stayed in that long.

Attached to that letter is a 15 September 1998 letter to the applicant from the Total Army Personnel Command (AR-PERSCOM) at St. Louis.  That command informed him, that while he did have 20 years, 9 months, and 24 days of service, a requirement of Title 10, USC, section12731-12737 is that the last 8 years of qualifying service must be performed as a member of the Reserve component; and that a review of his record showed that he had completed the minimum years of qualifying service, but lacked the additional qualifying service as a Reserve soldier.  Therefore, he was not eligible for retired pay benefits under the law.

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.  Before 1 July 1949 service in the National Guard, the Army Reserve in an active Reserve status, and the Army without specification of component is qualifying 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.
DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant stated at the time of his enlistment that he understood that 
he had to achieve 20 qualifying years of Federal service and be a member of the Reserve Component during the last 8 years of military service; and he had ample opportunity to obtain the required qualifying service when he enlisted in the Army Reserve in 1983, and that may have been his intent. However, after attaining two qualifying years of service, he apparently decided, sometime in 1988, not to participate in unit training assemblies and was reassigned to the Army Reserve Control Group (Reinforcement) in 1988, and was discharged from the Army Reserve in 1995.  

2.  The applicant has been notified by the AR-PERSCOM that the last 8 years of his qualifying service was not in the Army Reserve; consequently, although he had over 20 years of qualifying service, he is not eligible for retired pay at age 60, in accordance with the applicable provisions of Title 10, USC.  The 8 year rule was intended to prevent individuals from leaving active duty and serving a short time in the Reserve Components before retiring.

3.  This Board can add nothing to the information furnished to the applicant by AR-PERSCOM in September of 1998.  The applicant is not eligible for retired pay at age 60.  

4.  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

__cwb___  ___jhk__  ___wtm__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999020402	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990331	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 135.00		
2. 136.00		
3.		
4.		
5.		
6.