MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            27 April 2000                  
	DOCKET NUMBER:    AR1999029094

	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:

	Ms. Elizabeth Buchannon		Chairperson	
	Mr. Thomas A. Paqan		Member	
	Mr. Kenneth L. Wright		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:  In effect, that his records be corrected to show that he accepted a Reserve commission concurrent with his release from active duty, that the amount of his Special Separation Benefit (SSB) be increased by $5,135.00 due to his already corrected DD Form 214 which changed the date he entered on active duty, and that the recoupment of his SSB be terminated.

APPLICANT STATES:  That he executed a Reserve commission at the time of his release from active duty, but it was lost.  Since assignment to the Ready Reserve is a condition of receiving SSB, this resulted in recoupment of his SSB.  

In support of his application he submits copies of numerous documents concerning his debt to the Government.

EVIDENCE OF RECORD:  The applicant's military records were not provided to the Board.  Information contained herein was derived from documents provided by the applicant himself.

He entered on active duty as a commissioned officer on 22 December 1984 with 1 year, 7 months and 17 days of prior active service, and was promoted to captain, Regular Army.

On 29 January 1992 he submitted his unqualified resignation in conjunction with a request for SSB.  In that resignation he stated that he desired an appointment in the USAR and agreed to serve three years in the Ready Reserve.  He stated that the reason for his resignation was to pursue career opportunities in the civilian sector.

That request was accepted and he was released from active duty on 21 September 1992 with $42,795.00 in severance pay.

Title 10, USC, Section 1174 and 1175 states that “As a condition of receiving separation pay under this section, a person otherwise eligible for that pay shall be required to enter into a written agreement with the Secretary concerned to serve in the Ready Reserve of a reserve component for a period of not less than three years following the person's discharge or release from active duty.  If the person has a service obligation under section 651 of this title or under any other provision of law that is not completed at the time the person is discharged or released from active duty, the three-year obligation under this subsection shall begin on the day after the date on which the person completes the person's obligation under such section or other provision of law.” 

Army Regulation 140-10, paragraph 10, requires non-obligated officers (those who have completed their statutory military service obligation) to earn 27 retirement points a year if they have less than 20 qualifying years of service for retired pay, or 50 points if they have 20 or more qualifying years of service, for them to be retained in an active status (assigned to the ready reserve, which includes the USAR Control Group Reinforcement).

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

1.  There is no evidence that the applicant executed a Reserve commission in conjunction with his release from active duty.  Without a Reserve commission, recoupment of his SSB is appropriate.

2.  It would appear reasonable that a professional officer with over 8 years of active service would retain a copy of his commission.  The fact that the applicant does not have a copy of his commission is indicative that he did not execute such an oath.

3.  In addition, there is no evidence that the applicant attempted to earn any retirement points after his release from active duty.  Without earning at least 27 retirement points a year, he would have been involuntarily separated from the Ready Reserve, which would have also resulted in the collection of his SSB.

4.  Since the Board has not recommended correcting the applicant’s records to show that he executed a Reserve commission at the time of his release from active duty, there is no reason to consider changing the amount of SSB he would have received if he had executed his oath of office.

5.  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

__eb ____  ___tap __  ___klw __  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029094	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000427	
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.	102.00	
2.	128.10	
3.		
4.		
5.		
6.