PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            8 July 1999       
	DOCKET NUMBER:   AR1999023273

	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. June Hajjar		Chairperson	
	Mr. Raymond V. O'Connor, Jr.		Member	
	Mr. Roger W. Able		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 she be credited with 20 qualifying years of service for retired pay at age 60.  

3.  The applicant states that she served in the military from 1955 until her transfer to the Retired Reserve in July 1979 and has been denied retired pay benefits because she was 24 days short of 20 qualifying years of service for retired pay.  She contends that many errors were made in the computation and recording of her retirement points, and her records are incomplete.  She cites the discriminatory training restrictions placed on women during the 1960’s and 1970’s.  She states that she voluntarily accepted recall to active duty on three occasions, states that frequent corrections to her retirement point records could very easily have led to mistakes, that she was denied training primarily based on her sex, and was more than willing to serve.  She states that when Reserve service was restricted to 50 points per year, during some of those years she earned more that twice that number.  She also states that she had four different service numbers during her 24 years of service, again a likelihood that many of her retirement points were not credited, leading to “bad years” (less than 50 retirement points a year). 

4.  The applicant’s military records show that she entered on active duty on       29 June 1955 and was discharged in the grade of E-4 on 23 June 1958.  She served in the Army Reserve almost continuously, as an enlisted soldier, and then as a warrant officer from 1958 until her transfer to the Retired Reserve in 1979.

5.   On 7 May 1997 the applicant made application for retired pay benefits to the Army Reserve Personnel Center in St. Louis, to be effective 27 March 1997, her 60th birthday.  She was informed that she had not completed a minimum of       20 years of qualifying service, that her military records showed only completion of 19 years, 11 months, and 6 days of qualifying service for retirement purposes, and she was therefore ineligible to receive retired pay.

6.  A chronological record of military service shows that she had over 18 years of qualifying service at the end of her retirement year (RY) of 27 July 1978, but only the 19 years, 11 months, and 6 days of qualifying service at the time of her  transfer to the Retired Reserve in 1979.  She had four “bad” years (in which she did not earn 50 retirement points during her retirement year), from 28 July 1964 to 27 July 1965, from 28 July 1969 to 27 July 1970, and from 28 July 75 to           27 July 1977 (two years).  The applicant’s records do show various corrections to her retirement point records, and in fact, different iterations of the total retirement points for a particular retirement year.  Nonetheless, records do not show that she earned the necessary 50 retirement points during the aforementioned “bad” years.  A 29 June 1983 letter to her from the Retired Activities Directorate at St. Louis shows that she was informed that she had only 18 years, 11 months, and 25 days of qualifying service for retired pay.  

7.  Her records also show that she earned numerous retirement points from completing correspondence courses and from serving on active duty tours, in addition to her inactive duty training.  She transferred to the Army Reserve Control Group (Reinforcement) on one occasion because of a change of address, and transferred to that control group in June 1975 because the position in her assigned unit no longer existed.  Correspondence in her file shows that she had made various attempts to serve on active duty and to serve in a troop program unit.

8.  On 19 August 1978 she was notified that she was nonselected for promotion after her second consideration, and would be discharged within 90 days after the selection board reported its findings, unless she had a service obligation, was eligible and requested transfer to the Retired Reserve, or had been credited with 18 or more but less than 20 years of satisfactory federal service for retired pay purposes.  She was further informed that she was indeed eligible for transfer to the Retired Reserve and to indicate whether or not she requested this transfer.

9.  On 25 May 1979 she was informed that her removal from an active status had been held in abeyance pending the results of a DA standby advisory board, and since that board did not recommend her for promotion, her removal from an active status was mandatory.

10.  On 3 July 1979 the applicant was transferred to the Retired Reserve because of her nonselection for promotion to Chief Warrant Officer Four. 

11.  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.

12.  Army Regulation 135-155 prescribes the policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard and the Army Reserve.  Paragraph 4-29 of that regulation states that an officer whose removal from active Reserve status is required by law for failure to be selected for promotion must be removed within the prescribed time limits.  Those time limits can be extended or suspended only as authorized by law (Army Regulation 140-10, chapter 7).

13.  Chapter 7 of Army Regulation 140-10 pertains to removal of soldiers from an active status.  Paragraph 7-4 states, in effect, that officers who are nonselected for promotion after second consideration will be removed from an active status (discharged or transferred to the Retired Reserve).  Paragraph 7-12 of that regulation provides an exception to the above rule, and states in pertinent part, that officers having 18 or 19 years of qualifying Federal service for retired pay will not be removed without their consent.  Officers who meet this criteria on the date removal is required will be retained to complete 20 years.  Retained officers will be informed they must notify the appropriate authority when the service is completed.  Retention is authorized until the earlier of these dates:  (1) the date of which 20 years of qualifying Federal service for retired pay is completed, or (2) three years from required removal date.  Applies to officer having at least 18 but less than 19 years of qualifying service, or (3) two years from required removal date.  Applies to officers having at least 19 but less than 20 years of qualifying service.  

CONCLUSIONS:

1.  The applicant had over 18 years of qualifying service for retired pay at the time that she was notified of her second nonselection for promotion, and over   19 years when notified that a standby board had not recommended her for promotion.  She should have been retained in an active status for at least two years in order to have the opportunity to obtain 20 qualifying years of service.  

2.  The applicant was 24 days shy of 20 qualifying years of service.  It is the considered opinion of this Board that she would have obtained the points necessary to have 20 qualifying years of service had she been given the opportunity to do so.  She was not afforded that opportunity.

3.  The applicant is now over 62 years old.  The opportunity to obtain those retirement points has since passed (mandatory removal date for a warrant officer is age 62).  Therefore, in the interest of fairness, the applicant should be credited with 20 years of qualifying service for retired pay at age 60 and should be issued the notification of retired pay eligibility in accordance with appropriate regulations.
She should also be afforded the opportunity to participate in the Reserve component survivor benefit plan in accordance with the appropriate regulations.

4.  And consequently, she should receive retired pay retroactive to                      27 March 1997, the date she reached age 60.

5.  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:

     a.  showing that the individual concerned had 20 years of qualifying service for retired pay at age 60, and issuing the appropriate notification of retired pay eligibility;

     b.  providing the applicant the opportunity to participate in the Reserve component survivor benefit plan; and

     c.  granting her retired pay retroactive to 27 March 1997, the date she reached age 60.    

BOARD VOTE:  

___jh___  __rvo___  __rwa___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999023723	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.