MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            15 March 2000                  
	DOCKET NUMBER:    AR1999026892

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Van B. Cunningham		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 he be given a qualifying year of service for a partial retirement year and that his service be “rounded up” to 20 qualifying years of service for retired pay.

APPLICANT STATES:  He was informed in the letter which authorized him to be retained after he had been twice considered but not selected for promotion to major that a qualifying year of service is a year in which a reservist earns at least 50 retirement points.  He accomplished that by taking a correspondence course, but the Army is now telling him that isn’t a qualifying year for retired pay.  

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

He enlisted in the Regular Army on 30 July 1957, was awarded the military occupational specialty of armor crewman, and was promoted to pay grade E-5.  He was honorably discharged and transferred to the USAR Control Group on 20 July 1960.

On 17 August 1960 he again enlisted in the RA and was honorably discharged on 14 April 1966 due to his acceptance of a commission as a second lieutenant.

He remained on active duty in his commissioned status, serving in Vietnam, and was promoted to captain.

He was notified that he had been selected for separation due to a reduction in force in the Army and of his options in conjunction with that selection.  One of the options offered was enlistment in the Regular Army in pay grade E-5.  The applicant elected release from active duty and assignment to the USAR Control Group.  Accordingly, on 24 August 1972 he was honorably released from active duty and transferred to the USAR Control Group.

The applicant failed to participate in any fashion in the USAR and was notified that he would be discharged due to his lack of participation.  The applicant responded by requesting a waiver of the participation requirements.  He stated that he could not participate in the USAR because he was required to work a rotating shift on his federal job and he was attending college.  He was granted a waiver of the participation requirements for Retirement Year Ending (RYE) 20 July 1974 and was told he could only receive one waiver in a 3-year period.

In the years after the applicant’s release from active duty he only earned sufficient retirement points to qualify the RYE’s 31 October 1981, 1982, and 1983 for retired pay at age 60.  

On 21 April 1989 the applicant was notified that since he had been twice considered for promotion to major and had not been selected, he had to be removed from an active status.  However, since he had 18 years, 11 months and 21 days of qualifying service he was granted an extension of his mandatory removal to 9 January 1992, or until he completed 20 years of qualifying service, whichever occurred first.

Accordingly, on 9 January 1992 he was transferred to the Retired Reserve.

In the processing of this case an advisory opinion was obtained from the Army Reserve Personnel Command (AR-PERSCOM).  The AR-PERSCOM stated that the applicant did nothing for 1 ½ years to earn any retirement points after he was granted a waiver to be retained to earn 20 qualifying years of service.  At that time he enrolled in a correspondence course wherein he earned insufficient retirement points to qualify his RYE 30 October 1991 for retired pay, and he did not have the full year of service which was necessary to qualify RYE 1992 for retired pay despite the fact that he had earned 60 retirement points during that RYE.  A calculation of his retirement points shows that the applicant has earned a total of 19 years, 2 months and 1 day of qualifying service.  The applicant was furnished a copy of this advisory opinion and submitted additional matters for consideration by the Board.  In that rebuttal the applicant contests the calculation of creditable service made by the AR-PERSCOM, stating that if he had 18 years, 11 months and 21 days of qualifying service when he was passed over for selection to major, he should now have a total of 19 years, 11 months and 21 days of creditable service since the 60 retirement points he earned in his RYE 9 January 1992 constituted a qualifying year for retired pay, which is close enough to 20 qualifying years to be rounded up.  He adds that although he was slow to start earning retirement points after his retention was authorized, he acted in good faith and asks the Army to also act in good faith in his behalf.

Title 10, U.S. Code, section 1332 defines a qualifying year of service for retired pay as a full retirement year in which a Reservist or Guardsman is credited with at least 50 retirement points.

Department of Defense Instruction (DODI) 1215.00, paragraph 5.3.3, Removal from Active Status mandates that reservists who have not qualified for retirement at 60 years of age are required to attain 27 points annually during their anniversary year to be retained in the USAR Control Group.   Waiver of that requirement on a one-time basis may be made under exceptional circumstances by the Secretary of the Military Department concerned.

Army Regulation 140-10 , paragraph 7-4 specifies that reservist officers up to the rank of lieutenant colonel will be removed from the USAR if they are twice considered for promotion to the next higher grade but not selected.  Paragraph 
7-12 of this regulation provides for the retention of reserve officers twice not selected for promotion for up to 3 years if they have more than 18 but less than 19 qualifying years of service.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with advisory opinion, the evidence of record and applicable law and regulations, it is concluded:

1.  The Board accepts the AR-PERSCOM calculation that the applicant has 19 years, 1 month and 10 days of creditable service and, therefore, is not entitled to retired pay at age 60.

2.  The applicant’s contention that the 60 retirement points he earned in his final, partial year of service should be qualifying for retired pay is not true.  To qualify for retired pay a reservist must serve a complete year of service in which he or she earns at least 50 retirement points.  While the applicant earned sufficient retirement points his final year to qualify the year for retired pay, he did not serve a complete year of service.  However, even if the year was qualifying for retired pay, it would still leave the applicant short of 20 qualifying years of service, a fact acknowledged by the applicant himself.  The law does not allow for “rounding up” retirement points to qualify a reservist for retired pay.

3.  The Board notes that the applicant was retained in an active status long beyond the point in which he should have been discharged due to his failure to satisfactorily participate in the USAR.  He had almost 20 years to earn 5 years of creditable service.  He was given close to 3 years after he was twice considered and not selected for promotion to earn 2 years of creditable service.  The Board believes that the applicant was given every reasonable opportunity to reap retirement benefits from his lengthy active military service and did not take advantage of those opportunities.  While he did eventually enroll in a correspondence course it was too late.

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

_rvo_____  __mkp __  __vbc___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999026892	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000315	
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.	135.02	
2.		
3.		
4.		
5.		
6.