PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  9 January 2001
	DOCKET NUMBER:  AR2000038109

	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.  

	Mr. Carl W. S. Chun		Director	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Mark. D. Manning		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		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, correction of his military records to show that he completed 20 good years (20 qualifying years) of service for Reserve retired pay and benefits at age 60.

3.  The applicant states that during the May/June 1986 timeframe, he requested a review of his records to determine whether or not he had sufficient time to qualify for retirement.  The applicant states that he was informed that he had completed 20 qualifying years of service for transfer to the Retired Reserve.  He also states that, subsequent to verifying that he was qualified for retirement, orders were published assigning him to the USAR Control Group (Retired); however, he did not receive a 20-Year letter.  He further states that he inquired three years later and was informed that he was five months short of retirement.  Finally, he states that he was never officially notified that he did not have sufficient time to qualify for retirement and that subsequent attempts to serve the additional time required for retirement have been unsuccessful.

4.  In support of his application he submits the following:  an addendum to his application, a copy of Headquarters, Second United States Army Orders, 185-11, dated 6 October 1986; a copy of a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a letter, dated 21 May 1996 (Subject:  Request to Transfer from Retired Reserve); a copy of two letters to the Army Reserve Personnel Center (ARPERCEN), dated 3 April 1997 and 9 June 1997; two letters from ARPERCEN, Transfer Branch, dated 30 April 1997 and 17 June 1997; two letters from Congressional staff members, dated 5 May 1998 and 23 July 1998; a letter from the ARPERCEN, Transition and Separations Branch, dated 30 June 1998; and a copy of Standard Form 88 (Report of Medical Examination).

5.  In his addendum, the applicant states that in May 1989, he lost his wife in an automobile accident and that it took some time to recover from the shock of her death.  Between 1990 and 1994 he transferred jobs due to downsizing and reorganization.  He also states that he was preoccupied with three traumatic/dramatic events in his life, which spanned five years, that he was 53 years old and felt that he had ample time before reaching age 60 to complete his service time in order to qualify for retirement.  He contacted officials of the 100th Division during the 1995/1996 timeframe in order to explore the opportunities to serve the additional required time for retirement.  In late 1996, the commander of the 100th Division (USAR) informed him that a slot was available to drill in a points only status for as long as it took to complete his qualifying years.  Through subsequent conversations and correspondence, he was finally notified on 17 June 1997, by ARPERCEN, that at age 55, he had attained his maximum length of service in accordance with paragraph 7-2 of Army Regulation 140-10.  Subsequent attempts to obtain a waiver were unsuccessful.  The applicant contends that a review of his file will reveal that he served his country faithfully and well over a 22-year period and that he should be credited with sufficient service time to qualify for retirement.

6.  The applicant’s military records show that he was born on 28 August 1941.  The applicant was appointed as a Reserve officer in the rank of second lieutenant on 15 May 1964 in the Field Artillery branch and served on active duty for over 61/2 years.  He served in the USAR until he was transferred to the USAR Control Group (Retired) on 6 October 1986 in the rank of lieutenant colonel (LTC/O-5).

7.  The applicant provided a copy of a 21 May 1996 letter that requested his transfer to the Retired Reserve.  The letter indicated that a call was made concerning the applicant’s request for release from the Retired Reserve, and it referred to a cite in Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) Section II, Chapter 6.  The letter provided an excerpt from the regulation and indicated that the applicant’s request for transfer to the Individual Ready Reserve (IRR) would be reviewed by the Commander, ARPERCEN, for final approval or disapproval of the request for transfer.  If approved the Commander, ARPERCEN, would publish the transfer order and that a medical examination taken within the last year would be reviewed by an Army Surgeon.  

8.  The applicant provided a copy of a Standard Form 88, dated 16 August 1996, which shows he was found medically qualified for military service.

9.  The applicant provided a copy of a 3 April 1997 letter requesting that orders be prepared to assign him from the Retired Reserve to the IRR.  This letter also indicated that he received assurance from the commander of the 100th Division that he would be able to drill in a points only status for a period which would qualify him for retirement.

10.  The applicant provided a copy of a letter dated 17 June 1997, from the Transfer Branch of ARPERCEN that responded to the applicant’s request for transfer from the Retired Reserve to the IRR.  This letter indicated that the applicant had attained his maximum length of service in accordance with Paragraph 7-2 of Army Regulation 140-10 and, as a result, the applicant was not eligible to transfer from the Retired Reserve to an active Reserve status.

11.  The applicant provided a copy of a letter dated 30 June 1998, from the Director of Personnel Actions and Services of the Army Reserve Personnel Command (AR-PERSCOM), formerly known as ARPERCEN.  This letter responded to two Congressional staff members regarding his case.  The Director of Personnel Actions and Services stated that the applicant was informed that he had 20 years of creditable service by his unit; that the applicant requested transfer to the Retired Reserve and was later informed that he was five months short of the required 20 years of service necessary for retirement; and, that he would be ineligible to receive retirement pay at age 60.  The director also stated that after a thorough review of the applicable laws and regulations the applicant was ineligible for transfer from the Retired Reserve into a Ready Reserve component to complete 20 years of creditable service.  The director further stated that the applicant had already passed his Mandatory Removal Date (MRD) which is the age at which individuals are mandatorily removed from service by law, not by policy or Army Regulation.  The director concluded that it appears an injustice has occurred in this case due to an error made by the applicant’s unit and recommended that the applicant file an appeal with the Army Board for Correction of Military Records (ABCMR) requesting that he be granted credit for the requisite additional time he needs for his 20 years of service to qualify for Reserve retirement benefits at age 60.

12.  A copy of the applicant’s Chronological Statement of Retirement Points (Summary Points Inquiry/Update) was provided by ARPERCEN to a staff member of the ABCMR.  This document indicates that the applicant had completed 19 years, 8 months, and 7 days of qualifying service for retirement purposes.  The applicant’s retirement points summary shows that he was credited with 8 months and 7 days active duty from 15 May 1970 through 21 January 1971.  The summary also shows that he was given no retirement point credit, to include membership points, from 22 January 1971 through 14 May 1972.  Since he was transferred directly to the Ready Reserve upon his separation from active duty, this appears to be in error.

13.  Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail and transfer of USAR soldiers.  Chapter 7 of the regulation governs the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.

14.  Paragraph 6-5a(1) of Army Regulation 140-10, states, in pertinent part: “When a soldier applies for transfer to the IRR, the application will be reviewed by the Commander, ARPERCEN, (DARP-EPS) for final approval or disapproval of the request for transfer.  If approved, Commander, ARPERCEN (DARP-PAT-RT) will publish the transfer order.  To be eligible for transfer to the IRR the soldier must:  (1) Be qualified for assignment to the IRR, and available for deployment in the event of mobilization.  (2) Have had a medical examination taken within the last year and reviewed by an Army Surgeon.  The soldier must be qualified for retention and meet the physical profile required for his or her Area of Concentration (AOC) or Military Occupational Specialty (MOS).  (3) (pertains to enlisted only).  (4) Meet body fat standards of Army Regulation 600-9.  (5) Not be receiving retired pay.  (6) Not be 60 years of age or older if in an enlisted status.  (7) Not have been removed from an active status by board action or operation of law.”

15.  Paragraph 7-2 of Army Regulation 140-10, provides guidance on length of Reserve service.  It states, in pertinent part, that the actual removal date will be 30 days after:  (a) The individual completes 28 years of commissioned service if under age 25 at initial appointment or (b) the individual’s 53rd birthday if age 25 or older at initial appointment.

16.  Army Regulation 135-180 prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, United States Code, chapter 67, sections 1331 to 1337.  This regulation specifies, in pertinent part, that to be eligible for retired pay an individual must have attained age 60 and completed a minimum of 20 years of qualifying service and that, subsequent to 1 July 1949, qualifying service is granted for each year of service an individual earns 50 or more retirement points.

17.  Paragraph 2-3 of Army Regulation 135-180 states, in pertinent part, that a 
20-Year Letter will be issued to a Reserve Component soldier within 1 year after he or she completes 20 years of qualifying service for retirement.  This letter will be issued by the Commander, AR-PERSCOM for USAR soldiers.

18.  Sections 12731 through 12739 of Title 10, United States 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.  After 1 July 1949, a qualifying year is one in which a Reserve soldier earned 50 retirement points or more.  This law further requires that the last 8 years of qualifying service must be in a Reserve Component.

19.  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.

CONCLUSIONS:

1.  The evidence of record shows that, at the time the applicant was assigned to the USAR Control Group (Retired Reserve) on 6 October 1986, he had completed only 19 years, 8 months, and 7 days of qualifying service for retirement purposes.

2.  The Board notes the applicant’s statement that he requested a determination regarding qualifying service for Reserve retirement and was informed by Army officials that he had completed 20 qualifying years for retirement for transfer to the Retired Reserve.  The Board also notes that orders were published assigning the applicant to the USAR Control Group (Retired Reserve) on 6 October 1986, that he was expecting a 20-Year Letter which was never issued, and that the applicant was informed three years later he was five months short of retirement eligibility.  The Board also notes that no Army official notified him of this error until he inquired and subsequently attempted to serve additional time to qualify for retirement.

3.  The applicant later requested transfer from the Retired Reserve to the IRR to complete the time required to qualify for Reserve retired pay and benefits.  However, he had attained his maximum length of service and was not eligible for transfer from the Retired Reserve to an active status.

4.  The Director of Personnel Actions and Services, AR-PERSCOM, confirmed that the applicant was informed that he had 20 years of creditable service by his unit; that the applicant requested transfer to the Retired Reserve and, that he would be eligible to receive retirement pay at age 60, but was later informed that he was five months short of the required 20 years of service necessary for retirement.  After a thorough review of the case, the Director of Personnel Actions and Services also determined that the applicant was ineligible to transfer from the Retired Reserve into a Ready Reserve component to complete 20 years of qualifying service.  The Director further indicated that the applicant had surpassed his MRD (age 53) and mandatorily was removed from service.  The Director concluded by stating that an injustice had occurred in the applicant’s case as a result of an error by the applicant’s unit. 

5.  Based on the foregoing, the Board believes that the applicant was incorrectly advised by Army officials that he completed the qualifying service for Reserve retirement benefits when he became 60 years old on 28 August 2001.  However, the evidence of record shows that the applicant was only 3 months and 23 days short of the 20 years required to be eligible for Reserve retirement benefits at age 60.

6.  The Board believes that, had the applicant been properly advised that he was 3 months and 23 days short of qualifying service for Reserve retirement at age 60, he would have completed the required service.  In view of the Military Department’s error in this case, the applicant should be granted an additional service credit in order to qualify him for Reserve retirement benefits at age 60.

7.  The applicant’s retirement points summary shows that he was credited with 8 months and 7 days active duty from 15 May 1970 through 21 January 1971 and that he was given no retirement point credit, to include membership points, from 22 January 1971 through 14 May 1972.  If the applicant’s retirement points summary were amended to show that the period from 22 January through 14 May 1971 was a transition year for retirement purposes, with an additional five membership points, he could be credited with 3 months and 27 days USAR service.  When combined with the prior 8 months and 23 days active duty, this totals 1 year of qualifying service.

8.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected by:

a. correcting his retirement points statement to show his USAR service from 22 January through 14 May 1971 with the requisite 5 membership points as a transition year of 3 months and 27 days;

b.  showing that his final 8 months and 7 days active duty and the above 3 months and 27 days total 1 year of qualifying service and;

c.  upon completion of the administrative corrections to the individual’s records and issuance of a new Chronological Statement of Retirement Points (Summary Points Inquiry/Update) showing that he is eligible for and paying him Reserve Retired pay from his age of 60.

BOARD VOTE:  

__mm___  __ea___  __cg___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Mark D. Manning__
		        CHAIRPERSON

INDEX

CASE ID	AR2000038109	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010109	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19861006	
DISCHARGE AUTHORITY	AR .140-10	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  338		
2.		
3.		
4.		
5.		
6.