PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            27 May 1999                 
	DOCKET NUMBER:   AR1999023683

	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:

	Mr. Edward Williamson		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Kenneth L. Wright		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 he be granted retirement points in order to be eligible for retired pay at age 60. 

3.  The applicant states that he needed only three retirement points to have a qualifying year of service (a “good” year) for retired pay for the period                26 August 1986 to 25 August 1987.  He had so much active duty time the year before, he was informed that for the retirement year ending (RYE) on                 25 August 1987 he would be fine; and he did not find out until later that he did not have a good year.  He states that was injured and was unable to attend the required number of assemblies to attain the 50 retirement points in order to qualify for a good year.  He had performed annual training before his injury, but was not allowed to perform any annual training during the aforementioned retirement year. 

4.  In a 6 January 1997 letter to the applicant, the VA notified  him that he was entitled to receive compensation at the 100 percent rate because he was unemployable due to a service-connected disability.

5.  The applicant’s military records show that he received an annual statement of his retirement points as of 30 April 1997 from the Army National Guard.  That statement shows that he has 13 years, 7 months, and 12 days of creditable service for retired pay.  There are two significant entries on that statement – one showing that he earned 57 total points for retired pay for the period 11 June 1979 to 14 May 1980 (11 months and 4 days, 26 days short of a good year); and the other entry, for the period 26 August 1986 to 25 August 1987 showing the he earned 47 points for retired pay (not a good year).

6.  In the processing of this case an advisory opinion was obtained from the National Guard Bureau.  That agency stated that Public law 103-337, section 517, dated 5 October 1994 established special benefits for soldiers involuntarily separated from the Selected Reserve due to physical disability.  Among those benefits were commissary, post exchange, survivor benefit plan (SBP), and retired pay at age 60.  As a condition of eligibility, a soldier must have attained a minimum of 15 years of qualifying service, should have served the last six years in a Reserve component, and no longer meet the qualification for membership in the selected Reserve because of physical disability.  

7.  The National Guard Bureau stated that the applicant was just 26 days short of attaining a good year when he entered the Inactive National Guard on                14 May 1980, and that his unit may have incorrectly advised him that he qualified for a retirement year because he had 57 total retirement points.  The NGB also stated that for the retirement year ending on 25 August 1987, the year that he was 3 points shy of the required minimum 50 points, the applicant was advised that there was no funding available for him to perform annual training that year.  The NGB recommended that the order transferring the applicant into the Inactive National Guard on 14 May 1980 be voided and orders be amended to show transfer to the Inactive Guard on or after 10 June 1980; and that he be awarded 3 retirement point during his RYE on 25 August 1987.  The NGB recommended that the applicant’s request be granted and that he be authorized retirement pay at age 60.  On 20 May 1999 the applicant concurred with the advisory opinion.

8.  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.

9.  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.

10.  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. 

11.  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.

12.  The National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337) amended Title 10, United States Code, section 1331a©.  The modification allows Reserve component soldiers who are involuntarily separated between 5 October 1994 and 30 September 1999 because of medical unfitness to elect transfer to the Retired Reserve for Reserve retirement pay at age 60 based on a minimum of 15 years of qualifying service toward Reserve component retirement.
  
CONCLUSIONS:

1.  The applicant may have been done an injustice by his transfer to the Inactive National Guard on 14 May 1980, which resulted in him not being credited with a qualifying year of service for retired pay at age 60; and it appears that he should have been allowed to perform annual training during the RYE on                        25 August 1987.  Therefore, in the interests of fairness to the individual, those orders transferring him to the Inactive National Guard on 14 May 1980 should be declared null and void and of no force or effect; and that orders should be published transferring him to the Inactive National Guard on 10 June 1980, which gives him a qualifying year of service for retired pay (from 11 June 1979             to 10 June 1980).  

2.  Additionally, the applicant should be awarded three retirement points for the period 26 August 1986 to 25 August 1987, giving him a total of 50 points for retired pay for that year and a creditable year of service for retired pay.

3.  The applicant’s records should reflect that he has 15 years of qualifying service for retired pay at age 60.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing:

     a.  that the applicant’s transfer to the Inactive Army National Guard on           14 May 1980 was null and void and of no force or effect; and that he was transferred to the Inactive Army National Guard on 10 June 1980.  That he be credited with a creditable year of service for retired pay at age 60 for the period 11 June 1979 to 10 June 1980;
     b.  that he be credited with three retirement points for the period                    26 August 1986 to 25 August 1987, for a total of 50 retirement points, and that year be a qualifying year of service for retired pay at age 60; and

c.	that he has 15 years of qualifying service for retired pay at age 60.

BOARD VOTE:  

_ew_____  __mw____  _klw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999023683	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990527	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1. 135.02		
2.		
3.		
4.		
5.		
6.