PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           9 June 1999                   
	DOCKET NUMBER:   AR1999024724

	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. Elizabeth Buchanon		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. James P. Steuve		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 awarded pay that he would have earned had he remained in an active drill status, and that he receive one payment of special separation pay as authorized in the original order transferring him to the Reserve Control Group (Retired).

3.  The applicant states that he was notified in February 1996 he was subject to mandatory removal from an active status because of length of service.  He elected to retire.  The memorandum from his major command, the Army Special Operations Command, and his retirement order, both state that he should receive special separation pay in connection with the Selected Reserve Transition Benefit Program (SRTBP).  In October 1996, he was notified that the determination concerning his length of service was erroneous, and that the reason for his retirement was being changed, the original retirement order cancelled, and that he would no longer receive special separation pay.  It was too late to return to a Reserve unit in an active status.  He has lost pay and retirement points, and the special separation pay, which was basically the reason he opted to retire.  He requests that the separation pay be restored, and that he be paid, in effect, for drills he would have attended for the months of April through November 1996.  

4.  The applicant’s military records show that he entered on active duty on           6 April 1967 and was released from active duty in the grade of E-5 on                 11 January 1970.  A chronological statement of retirement points, dated            18 October 1996, shows that except for two brief breaks of service, he served in Reserve component units (Army Reserve, Navy Reserve, Air Force Reserve, and Army National Guard), both in an active status and in an inactive status, until his transfer to the Retired Reserve in 1996. 

5.  On 5 February 1996 the Army Special Operations Command notified the applicant’s unit that records indicated that the applicant would have 29 years of military service on 19 May 1996, and, in effect, the applicant would have to be transferred to the Retired Reserve.  That command requested to be notified if his years of service, based on his pay entry basic date (PEBD) was incorrect.  The unit was also notified that the applicant was eligible for one payment of special separation pay.  

6.  On 7 May 1996 the applicant requested transfer to the Retired Reserve.  On 17 June 1996 the Army Special Operations Command published an order transferring him to the Retired Reserve effective that date.  That order indicated that separation pay was authorized based on his years of service.

7.  On 7 November 1996 the applicant requested assistance from a member of congress, stating that he not only lost pay and retirement points, and the promised separation pay, but he also lost any consideration for promotion, a consideration which was pending before a promotion board.  A promotion to Sergeant Major would have allowed him to remain in an active status for another three years.  He also stated that he had not received his 20 year letter, verifying his time in service and eligibility for retirement.

8.  There are no available documents showing that his original order transferring him to the Retired Reserve on 17 June 1996 was revoked, and another order published with a later transfer date. 

9.  A review of the applicant’s latest chronological statement of retirement points, dated 18 October 1996, indicates that for each retirement year (RY), from 1984 through 1996, the applicant averaged 45 inactive duty training (IDT) points a year, and that those points, with his membership points and active duty points, easily exceeded the 50 point minimum requirement for a qualifying year for retirement.  The lowest number of points he earned for a RY during that eleven year span was 76 points.  However, from 12 February 1996 through                  17 June 1996, the date he was transferred to the Retired Reserve, he did not earn any IDT points.  

10.  Army Regulation 140-10 covers policy and procedures for assigning, removing, and transferring Reserve soldiers.  Chapter 7 concerns removal from an active status, and states in effect, that enlisted soldiers will be discharged, transferred to the Retired Reserve, or assigned to the IRR (individual ready Reserve).  Paragraph 7-2b states that Reserve troop program (TPU) soldiers in the grade of first sergeant/master sergeant will be removed from an active status within 30 days after completing 29 years of service.  A soldier will not be removed unless he has received the letter of notification to receive retired pay at age 60.   

11.  In the processing of this case an advisory opinion was obtained from the Chief of the Army Reserve.  That agency recommended that the applicant be given constructive credit (retirement points and pay) for the four months (July through October 1996) that he was unable to drill.  The OCAR indicated that the applicant was reassigned to the Retired Reserve four months earlier than he should have been.  The OCAR recommended disapproval of his request for special separation pay, stating that the correction of the applicant’s PEBD removed him from the entitlement period for that pay.  He is requesting special separation pay based on an administrative error.  He is not authorized benefits that he would not otherwise be entitled to.  A copy of the advisory opinion was furnished the applicant on 2 April 1999 for his information and possible rebuttal.  He failed to respond.

12.  The Chief of the Army Reserve encloses the implementing guidance for Selected Reserve transition programs authorized in the National Defense Authorization Act for FY 1993, Public Law 102-484, and implemented by a DOD policy memorandum.  Section 6 of that guidance authorizes special separation payments for enlisted members who are involuntarily separated from the Selected Reserve as the result of regulatory high year of tenure policies.  The requirement expired on 1 October 1996.  Members who are approved for special separation pay will be granted an annual payment for one to five years, and the annual payment should be as indicated in the formula contained in that guidance.  
13.  Information obtained from the Total Army Personnel Command at St. Louis on 2 June 1999 indicates that the applicant’s PEBD of 19 May 1967 was indeed incorrect, that he had short breaks in service totaling 9 months and 3 days, and consequently, his correct PEBD is 9 January 1968; and that if separated for maximum years of service (29 years), then he should have been separated on    9 January 1997. 

14.  Army Regulation 140-1, provides policy guidance on training of the Army Reserve, and paragraph lists the type of inactive duty training (IDT) assemblies for which pay or retirement point credit, or both, are authorized.  A unit training assembly (UTA) is an authorized and scheduled training assembly of at least      4 hours, and at least 1 day’s pay or 1 retirement point, or both is authorized for each assigned or attached person who satisfactorily completes the entire UTA.  No more than two UTAs are conducted per day.  Troop program units will conduct no more than 48 UTAs each fiscal year.    

CONCLUSIONS:

1.  The applicant was transferred to the Retired Reserve effective 17 June1996, 29 days after his mandatory removal date of 19 May 1996, based on 29 years of service.  That date, however, is incorrect.  His correct mandatory removal date based on 29 years of service, as verified by the Total Army Personnel Command, is 9 January 1997.  He could have remained in his Reserve unit in an active status until 7 February 1997 (within 30 days after completing 29 years of service).    

2.  The applicant requested transfer to the Retired Reserve in response to the memorandum from Special Operations Command notifying him that he had to be removed from an active status.  Based on the action taken by that command, and the applicant’s response, it could be assumed that, had his correct PEBD been known, nothing would have changed, except for the dates and the information that he was eligible for special separation pay; that is, he would have been notified that he had to be removed from an active status, and he would have requested, and would have been transferred to the Retired Reserve no later than 7 February 1997, in effect, an involuntary separation from the selected reserve based on regulatory high year of tenure policies.  A request from him for transfer to the Retired Reserve effective prior to his mandatory removal date would be voluntary, and special separation pay was not authorized for soldiers who voluntarily requested transfer to the Retired Reserve.  Additionally, his 

transfer, based on his correct mandatory removal date, would have occurred after 1 October 1996, the expiration date authorizing special separation pay for soldiers involuntarily removed from the selected Reserve because of tenure policies.

3.  Therefore, the Board believes that he would have remained in his Reserve unit until his transfer to the Retired Reserve on 7 February 1997, and that he would have continued attending unit training assemblies.  Although his records show that he did not attend IDT anytime during his RY beginning on                     12 February 1996, that decision by him to not attend IDT could be attributed to the 5 February notification that he had to be removed from an active status, a notification based on an erroneous PEBD.   Consequently, although there is no certainty as to the events that would have enfolded had the applicant been correctly informed of his mandatory removal date, the applicant, in all fairness, should be given the benefit of the doubt.  

4.  The applicant’s record should be corrected to revoke any previous order transferring him to the Retired Reserve, and any such order should be declared null and void, and of no force or effect.  He should be transferred to the Retired Reserve effective 7 February 1997.  The applicant should also be awarded IDT points for the months of February 1996 through January 1997, 4 points for each month, for a total of 48 points, and he should be awarded the appropriate membership points for that retirement year ending on 7 February 1997.  The applicant should receive all due pay and allowances for IDT assemblies for the months of February 1996 through January 1997. 

5.  Based on the above conclusions, the applicant’s request for both retirement points and pay for IDT assemblies that he would have attended, and his request for reinstatement of special separation pay, is not reasonable.  The Board agrees with the advisory opinion from the Chief of the Army Reserve that he is not entitled to special separation pay. 

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

RECOMMENDATION:

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

     a.  revoking any previous order transferring the applicant to the Retired Reserve.  Any such order is null and void and of no force or effect;    

     b.  transferring the applicant to the Army Reserve Control Group (Retired) effective 7 February 1997;
     c.  awarding the applicant inactive duty points for the months of February 1996 through January 1997, 4 points for each month, for a total of 48 points;

     d.  awarding the applicant the appropriate membership points for the RY ending on 7 February 1997; and,

     e.  awarding the applicant all due pay and allowances for IDT assemblies  
for the months of February 1996 through January 1997, based on satisfactory completion of four UTAs for each of those months.

2.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

__eb____  __rjw___  ___jps__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999024724	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990609	
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. 128.00		
2.  135.02		
3.		
4.		
5.		
6.