PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           23 March 2000                   
	DOCKET NUMBER:   AR2000035476

	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:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Roger Able		Member	
	Mr. James E. Anderholm		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 defers to his counsel.

3.  The applicant’s counsel requests reconsideration of his request for back pay for the period 18 December 1985 to 3 December 1989 and credit for active duty time during this period.  He notes that while the Board stated the applicant was released from active duty for training on 18 December 1985 and returned to his Reserve unit, this occurred only because the Board previously corrected his records to show he had been erroneously discharged.  Since the correction did not take effect until 1990, obviously there is no evidence to show he performed inactive or active duty during that period.  However, nonetheless, it is an injustice to deprive the applicant of the pay and active duty credit he would have earned had not the Army erroneously discharged him.  His records should be further corrected to show he earned pay and points during each of the four years equal to the average of the pay and points that he earned throughout the rest of his Reserve career.

4.  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of the applicant’s case on 15 January 1992.  Also incorporated herein by reference is the Board’s consideration of his case (for reinstatement) on 14 June 1989.

5.  The Retirement Points Accounting System reflects 15 membership points for the applicant during retirement year beginning dates 29 May 1986, 1987, 1988 and 1989 as a result of the correction to his records made on 14 June 1989.

6.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized.  In pertinent parts, it states that a soldier may be credited with a maximum of 60 points for inactive duty training (IDT) and membership points annually and one point for each calendar day he/she serves on annual training or other active duty.

7.  Army Regulation 135-200 prescribes policies for ordering U. S. Army Reserve soldiers to annual training and other active duty periods.  In pertinent part it states that Troop Program Unit (TPU) soldiers are required to serve on annual training for 14 days during each year.

CONCLUSIONS:

1.  The Board agrees that the applicant has a valid contention.  While the evidence of record indeed showed that he had not performed any duty during the period of time in question, the evidence also shows that he was precluded from performing any duties because he had been erroneously discharged.  His records were not even corrected to void his discharge and return him to his Reserve unit until 14 June 1989 with the administrative correction being made several months later.
2.  The Board cannot justify granting the applicant pay and points during each of the considered four years equal to the average of the pay and points that he earned throughout the rest of his Reserve career.  Earning in excess of the maximum points creditable during a retirement year requires volitional acts by the applicant which did not occur and which should not be retroactively presumed.  However, it would be appropriate to show that he earned the maximum IDT points creditable (45 points, plus his 15 membership points) and to show he served the required 14 days annual training during the 4 years in question.  It would also be appropriate to pay him back pay and allowances due him as a result of this correction.

3.  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.  showing that the applicant earned 45 inactive duty points and 14 active duty points for each of the retirement years beginning 29 May 1986, 29 May 1987, 29 May 1988 and 29 May 1989 for a total of 75 points for each year; and

     b.  paying to the applicant all pay and allowances due as a result of the aforementioned correction.

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

BOARD VOTE:  

__slp___  __ra____  __jea___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Shirley L. Powell
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000035476	
SUFFIX		
RECON		
DATE BOARDED	20000323	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.14	
2.		
3.		
4.		
5.		
6.