MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 November 2000                   
	DOCKET NUMBER:   AR2000038391

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. Orville W. Troesch, Jr.		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:  That he be issued a notification of eligibility for retired pay at age 60 and authorized to enroll in the Reserve Component Survivor Benefit Plan (RCSBP).

APPLICANT STATES:  That all of his qualified service was in the Army National Guard prior to the publication in 1974 of Army Regulation 135-180 which required that he have served on active duty during three specific timeframes before becoming eligible to draw retired pay.  He was never informed about this exclusionary period.  He is disenfranchised.  He has sufficient military service and by today’s regulations he would collect a military retirement.  Supporting evidence is as shown on the DD Form 149.

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

He was born on 1 August 1916.  He enlisted in the Minnesota Army National Guard (MNARNG) on 15 October 1935.  He received a hardship discharge on  14 October 1938.  He reenlisted in the MNARNG on 27 October 1939.  He received another hardship discharge on 16 October 1940.  He reenlisted in the MNARNG on 12 November 1946 and was discharged on 30 March 1965.  

In response to his application for retired pay in 1976, the MNARNG informed the applicant that he was not eligible to receive retired pay at age 60 because he did not perform active service during some portion of any of the following periods:  after 5 April 1917 and before 12 November 1918; after 8 September 1940 and before 1 January 1947; and after 26 June 1950 and before 28 July 1953.

In the processing of this case, an advisory opinion was obtained form the National Guard Bureau (NGB).  NGB recommended that the applicant be granted his requests as the right and appropriate thing to do.  He served his nation when he was able.  He was unaware of the requirement to serve on active duty during wartime periods to qualify for nonregular retirement.  Title III of the Army and Air Force Vitalization and Retirement Equalization Act of 1948 created a nondisability retirement program for Reserve personnel.  The House Armed Services committee outlined the purpose of the program in these terms:  “The underlying purpose in writing this policy as to Reserve components into law is that the retirement benefits will furnish an incentive that will hold men in the Reserve components for a longer period of time…The result should be longer periods of service by Reserves and a larger and better trained force on M-Day…” NGB supports the applicant’s request based on the provisions of law, the intent of Congress and fairness and equity.

A copy of the advisory opinion was provided to the applicant.  He did not respond within the given time period.

Public Law 810, enacted 29 June 1948, established longevity retirement pay for members of reserves.  Title 10, U. S. code, section 1331(c), (now section 12731(c)) provided that individuals who were in the Armed Forces Reserves or National Guard prior to World War II were excluded from eligibility for retirement pay unless active duty was performed during designated or wartime periods.
 
Mayer v. United States, 201 Ct. Cl. 105 (1973) determined that retirement status for military personnel and right to retirement pay are created and controlled by statute.  Comptroller General Decision B-274195 determined that the only statutory duty imposed on services under Title 10, U. S. code, section 12731(d) is to notify a member that he has completed 20 years of service required for nonregular retired pay eligibility.  There is nothing in that provision, nor in any other provision, that imposed similar duty regarding member compliance with wartime active duty requirements.

Public Law 95-397, the 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.

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 this requirement.

2.  The Board acknowledges that the applicant probably could not have served on active duty during World War II and his discharges for hardship in 1938 and 1940 were unavoidable.  However, he reenlisted in the MNARNG in 1946.  The law requiring wartime active duty to qualify for a nonregular retirement was passed in 1948.  He served during all of the Korean War.  The law did not require that a member be informed of the wartime active duty requirement.  In that regard the law was no different from most other laws that are passed that affect soldiers and others alike.   

3.  A member’s retirement status and right to retirement pay are created and controlled by statute, not by regulation and, in this case, by a law passed in 1948. The 1974 version of Army Regulation 135-180 just happened to be the regulatory guidance that implemented the law in effect at the time the applicant applied for retired pay.  He would not be eligible to draw retired pay by today’s regulations, either.

4.  Despite the advisory opinion, the Board concludes that it was the intent of Congress to require wartime active duty under the circumstances of this case in order to become eligible for a nonregular retirement.  That was the wording of the law that was passed. 

5.  Notwithstanding the advisory opinion, 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

__jlp___  __bjl___  __owt___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000038391	
SUFFIX		
RECON		
DATE BOARDED	20001109	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	135.03	
2.		
3.		
4.		
5.		
6.