MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 September 1999                   
	DOCKET NUMBER:   AR1999027537

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Barbara J. Ellis		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:  It is unclear if the applicant is requesting that his records be corrected to reflect that he is eligible for a Reserve retirement or that his retirement years/points be corrected.

APPLICANT STATES:  That this has been an on-going problem.  His statement of service and a 28 October 1988 letter from the U. S. Army Reserve Personnel Center to his Congressman are provided as supporting evidence.

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

He was appointed a commissioned officer in the U. S. Army Reserve (USAR) on 5 December 1940.  He accepted the appointment on 9 December 1940.  He entered active duty on 1 April 1941 and was released from active duty on          10 January 1946.  He re-entered active duty on 3 November 1950, was appointed a Regular Army officer on 1 May 1951 and was discharged from active duty on 14 January 1955.  He re-entered the USAR on 15 January 1955.  He was transferred to the Retired Reserve on 13 June 1958 for an unknown reason.

On 1 June 1956, the applicant stated he had been given erroneous information and requested that his records be reviewed with respect to giving him credit for a qualifying year for the retirement year ending 14 January 1956.  

On 18 September 1956, the North Carolina Military District responded to the applicant.  The response reviewed all his periods of service, USAR and Regular Army and noted which years counted towards qualifying service for a Reserve retirement and which did not.  It cited Title III of Public Law 810 which required that the last 8 years of qualifying service, for the 20 years satisfactory Federal service required for a Reserve retirement, must have been served in a Reserve status.  It noted that when he re-entered into a Reserve status on 15 January 1955, that acted to re-establish his “retirement year,” beginning that date.  On that date he then was required to complete 8 years additional years of qualifying service in order to attain 20 years of satisfactory Federal service required for a Reserve retirement.  He would have completed 20 years of satisfactory Federal service for retirement on 14 January 1963 had he earned a minimum of 50 points per year during this period.  However, he did not make 50 points in retirement year ending 14 January 1956, thereby voiding that year.  Thus, he could complete his 8 years qualifying service by 14 January 1964 (provided he earned 50 points per year), at which date he would have had 20 qualifying years for retirement and over 23 years for pay. 

Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized.  Only Ready Reserve soldiers and Active Standby Reserve are authorized retirement point credit.  The retirement year beginning date will be the date of initial entry into a Reserve Component (such as when a USAR commission is accepted) but may be changed under certain circumstances, such as the soldier having a break in (USAR) service.

Sections 12731 through 12738 of Title 10, U.S. Code, authorize retired pay for Reserve component military service.  Under this law, a Reserve soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.

In the processing of this case, an advisory opinion was obtained from the Army Reserve Personnel Command.  The opinion noted that upon the applicant’s transfer to the Retired Reserve on 13 June 1958 he had completed a total of 17 years, 6 months and 5 days of time for longevity pay purposes, making him ineligible for Reserve retired pay.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

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

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  In addition to not serving his last 8 years in a Reserve status, the applicant had more than 2 years to serve before he would even have completed the 20 years of qualifying service required to be eligible for a Reserve retirement.  The applicant was made aware of the 20-year/8 year requirement in 1956.

3.  There does appear to be a minor administrative error on the applicant’s statement of service, section 9.  The retirement year that began on 1 July 1954 should have ended on 14 January 1955, the date he was discharged from active duty as a Regular Army officer, not 14 June 1955 (this may be only a typographical error).  However, the number of retirement points earned would have remained 198.  The Board will not direct that the applicant’s retirement year ending date 14 June 1955 be changed solely to correct this administrative error as such correction will not affect the total number of points he earned nor the number of qualifying years he served. 

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

__emw___  __mhm___  __bje___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999027537	
SUFFIX		
RECON		
DATE BOARDED	19990923	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	135.02	
2.		
3.		
4.		
5.		
6.