PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           23 February 2000                   
	DOCKET NUMBER:   AR1999028983

	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.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		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.  The applicant requests, in effect, that his discharge orders be revoked and he be transferred to the Retired Reserve.

3.  The applicant states that after receiving his 20-year letter he requested transfer to the Retired Reserve.  He heard nothing more until he was notified he
had been discharged in March 1998.  He assumed this was an oversight.

4.  The applicant’s military records show that he was born on 4 March 1949.  After having had prior service in the U. S. Marine Corps and U. S. Marine Corps Reserve, he enlisted in the U. S. Army Reserve (USAR) in January 1978.

5.  The applicant’s notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 30 October 1996.  (The letter stated that he had 90 days from the date he received the letter to submit his Survivor Benefit Plan (SBP) Election Certificate.)  On 5 August 1997, he submitted an application for retired pay benefits (retired pay to begin 4 March 2009).  On this date also he completed his SBP Election Certificate.

6.  The U. S. Army Reserve Personnel Command (AR-PERSCOM) notified the applicant on 23 February 1998 that he had failed to maintain an active status points and that if he did not remain in an active status he had the choice of requesting transfer to the Retired Reserve or being discharged.  He failed to respond to this letter and on 6 March 1998 he was discharged from the USAR.

7.  Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers.

8.  Sections 12731 through 12740 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.

9.  Public Law 95-397, the Reserve Component SBP (RCSBP), enacted               30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  A member must make the election within 90 days of receiving the notification of eligibility to receive retired pay at age 60 or else wait until he/she applies for retired pay and elect to participate in the standard SBP.
10.  In the processing of this case, an advisory opinion was obtained from          AR-PERSCOM, Transitions and Separations Branch.  AR-PERSCOM noted that the applicant was discharged because his term of service had expired (not for nonparticipation).  They had apparently not received his 5 August 1997 application for retired pay and, because he failed to respond to their 23 February 1998 letter, discharge orders were published.  AR-PERSCOM recommends approval of his request.

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

CONCLUSIONS:

1.  The applicant actively participated in his Army Reserve assignments up until he received his 20 year letter.  He applied for retired pay and the SBP on            5 August 1997.  It appears his request was not received by AR-PERSCOM.

2.  Because the applicant’s application was not received, AR-PERSCOM sent him a non-participation letter.  He failed to reply to the letter because he assumed it was sent in error. 

3.  Based on that lack of reply, the applicant was discharged from the USAR.  

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by: 
     a.  by revoking orders D-03-816076 dated 6 March 1998, AR-PERSCOM discharging the applicant from the U.S. Army Reserve; and
     b.  by publishing orders assigning the applicant to the U.S. Army Reserve (Retired) effective 6 March 1998.

2.  The Board notes that the applicant completed his RCSBP election form well past 90 days after the date of his 20-year letter and he provides no evidence to 

show he did not receive the letter until May 1997 or later.  He is advised to verify with AR-PERSCOM and/or the Defense Finance and Accounting Service to determine if his RCSBP election was accepted for processing.  

BOARD VOTE:  

__rvo___  ___eb___  __rjw___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999028983	
SUFFIX		
RECON		
DATE BOARDED	20000223	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	135.03	
2.		
3.		
4.		
5.		
6.