PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           21 December 2000
	DOCKET NUMBER:   AR2000039539

	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	
	Mr. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Ms. Gail J. Wire		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 an extension of his mandatory removal date (MRD) 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 he needs two more years of qualifying service to be eligible for retired pay and benefits at age 60.  He states that he suffered from depression for five years from 1989 to 1993 and was incapable of fulfilling many duties beyond his civilian occupation.  He further states that after his depression subsided, he spent a considerable amount of time and energy to insure that his mother had sufficient financial resources and satisfactory health care.  He stated that his next efforts were directed toward increasing his qualifying years of service for retirement.  The applicant then described his efforts to correct his retirement points which only reflected seven qualifying years as of the early 1990’s and which now has been corrected to show 18 qualifying years.  He states that he achieved these corrections through time-consuming research and communication with the U.S. Army Reserve Personnel Center (ARPERCEN) [now known as the U.S. Army Reserve Personnel Command (ARPERSCOM)].  During this process, he discovered that his points from 1982 through 1984 were misapplied with only 49 points allocated for 1982 when he actually earned 73 points.  He states that the realignment of the points earned from 1982 to 1984 was the final stage in a long process to attain 18 years of qualifying service. The applicant contends that, in 1989, he thought that he had completed requirements for a 50-point year for his retirement year ending on 24 August 1989, but credit for a subcourse [four points] was disallowed because he had completed the same subcourse years earlier.  He states that both subcourses were part of larger courses and had he not been depressed, he would have sought approval to earn the four points needed for a qualifying year.  Due to these circumstances he requested authorization from ARPERSCOM to earn the four points necessary to make 1989 a qualifying year for retirement purposes.  In support of his application, he submits a statement from his physician and two copies of DARP Forms 249-E (Chronological Statements of Retirement Points).

4.  The applicant’s military records show that he was born on 20 May 1943.  He enlisted in the Regular Army on 12 November 1967 as a combat engineer and continued to serve until he was honorably discharged on 29 August 1968 in order to accept a commission as an officer in the U.S. Army Reserve (USAR).

5.  The applicant was appointed in the USAR as a second lieutenant in the Finance Corps on 30 August 1968.  He was 25 years, 3 months and 10 days old at the time of his appointment as a Reserve commissioned officer.  The applicant was advanced to captain on 30 August 1970 was released from active duty on 31 July 1973. 

6.  After release from active duty, he continued to serve in the USAR as an instructor and in an Individual Mobilization Augmentation position.  He was promoted to the rank of major on 15 December 1978 and to lieutenant colonel on 14 December 1985.  He was transferred to the USAR Control Group (Retired) on 1 April 1999 in the rank of lieutenant colonel.

7.  The applicant’s Chronological Statement of Retirement Points, dated 10 November 1994, shows that he completed seven qualifying years for retirement purposes.  His Chronological Statement of Retirement Points, dated 20 March 1996, also shows that he was credited with seven qualifying years for retirement.  Two Chronological Statements of Retirement Points, dated 14 November 1996 and 30 September 1997, show that his qualifying years of service for non-regular retirement eligibility at age 60 had been adjusted to show 17 years and 2 days.  

8.  The applicant was reassigned from the USAR Control Group Reinforcement to the Retired Reserve effective 1 April 1999 for “completion of the maximum years of service” by USAR Personnel Command Orders C-04-919949, dated 1 April l999.

9.  After additional review of the applicant’s service, his Chronological Statement of Retirement Points was corrected by ARPERSCOM on 11 May 1999 to show that he had completed 18 years and 2 days of qualifying service for retirement purposes.

10.  In support of his application, the applicant provided a 7 October 1999 letter from his physician which stated that he had treated the applicant since April 1981.  The doctor also stated that the applicant was severely depressed from 1989 to 1993 and was under psychiatric care for most of this period.  The statement further indicated that the applicant’s depression was so disruptive to his life and career that his employer referred him for initial psychiatric counseling and that, during this period, he had very limited capacity to perform duties beyond his primary civilian occupation.  The physician also asserts that the applicant’s depression was characterized as bipolar (manic depression) and he was eventually placed under the care of another psychiatrist.  The physician concluded that the applicant was stabilized under the care of a psychiatrist by therapy with medication, that he made remarkable improvement and that he is now a fully functional member of society and capable of handling many challenges.

11.  Paragraph 7-2 of Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) provides guidance on the maximum 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.  However, the implementation of the Reserve Officer Personnel Management Act (ROPMA) changed the removal date for lieutenant colonels to 28 years of service or age 60 whichever occurs earlier.

12.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) 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 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.

13.  Paragraph 7-12 of Army Regulation 140-10 provides guidance on exceptions to the specific reasons for removal of a Reserve officer from an active reserve status.  The regulation states that an exception to removal for failure to earn the required 50 retirement points may be authorized by the area commander for soldiers assigned to a Troop Program Unit (TPU) or the commander of ARPERCEN (DARP-PAT-I) for all other USAR soldiers.  Waivers are authorized as specified in the following situations:  1.)  The solider requests a waiver and submits documentation to show that nonparticipation was due to circumstances beyond his or her control.  Such circumstances are defined as those of a personal or temporary nature such as extended illness or civilian employment interferences.  A waiver of nonparticipation may be granted only on a one time basis for failure to earn the required 50 points during a retirement year.  2.)  Officers having 18 or 19 years of qualifying Federal service for retired pay will not be removed without their consent.  Officers who meet this criteria on the date removal is required will be retained to complete 20 years.  Retained officers will be informed they must notify the appropriate authority when the service is completed.  Retention is authorized until the earlier of these dates:  a) the date on which 20 years of qualifying Federal service for retired pay is completed; or b) three years from the required removal date for officers having at least 18 but less than 19 years of qualifying service; or c) two years from the required removal date for officers having 19 but less than 20 years of qualifying service.

14.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), indicates, in pertinent part, that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and, (3) served the last 8-years of his or her qualifying service as a Reserve component soldier.  

15.  Army Regulation 135-180 also states in paragraph 2-3, that a 20-Year Letter will be issued to the Reserve component soldier within 1 year after they complete 20 years of qualifying service for retirement.  This letter will be issued by the Chief of the National Guard Bureau for Army National Guard soldiers and by the Commander of the Army Reserve Personnel Command (AR-PERSCOM ) for USAR soldiers.  The letter, once issued, may not be withdrawn or revoked.  The soldier may voluntarily elect to transfer to the Retired Reserve or be discharged from the Army.  

CONCLUSIONS:

1.  The applicant’s birth date is 20 May 1943.

2.  The applicant was appointed an officer in the USAR on 30 August 1968 at age 25 years, 3 months and 10 days.

3.  The Army regulation governing mandatory removal, in effect at the time in question, stated that the removal date for a Reserve officer appointed after reaching age 25 is upon reaching his or her 53rd birthday.  In this case the applicant’s mandatory removal date was 20 May 1996.  

4.  However, under provisions of ROPMA which were retroactive to 1994, the applicant’s mandatory removal is based on 28 years of service; therefore, his mandatory removal date was actually 1 September 1996.

5.  Orders show the applicant was not reassigned from the USAR Control Group Reinforcement to the Retired Reserve for “completion of the maximum years of service” until 1 April 1999.

6.  As of 11 May 1999, ARPERSCOM credited the applicant with 18 years and 2 days of qualifying service toward the 20 years of qualifying service required for certification for reserve retirement pay and benefits at age 60.  Based on this fact, the applicant is entitled, based on current regulation, to serve in an active Reserve status for three years in order to complete the two years necessary to make him eligible for Reserve retirement benefits at age 60.  

7.  The applicant has provided medical evidence of his bipolar condition which casts doubt on his ability to serve further in an active status.

8.  The applicant has sufficient excess retirement points to complete the two additional qualifying years of service necessary to achieve the 20 years required for certification for reserve retirement pay and benefits at age 60.  By taking four retirement points from the retirement year ending (RYE) 1979/08/24 and adding them to the RYE 1989/08/24 provides an additional qualifying year (the 19th year) toward eligibility for Reserve retirement benefits at age 60.  By taking 23 retirement points from RYE 1974/08/24 and applying them to RYE 1985/08/24 completes the applicant’s 20 qualifying years necessary for certification for entitlement to Reserve retirement benefits at age 60.

9.  In view of failure by the applicant and ARPERSCOM to maintain a correct Chronological Statement of Retirement Points, the applicant was not properly notified that he reached mandatory removal date on 1 September 1996.  Further, there is no evidence the applicant was notified, as provided for in regulation, that he would be retained, in an active status for three years (1 September 1996 through 30 August 1999) in order to complete the two years necessary to accumulate 20 qualifying years for certification for entitlement to Reserve retirement benefits at age 60.

10.  Based on the foregoing, the Board determined that it is not in the Army’s best interest, at this late date and in view of his diagnosed mental disorder, to restore the applicant to an active status to complete the service required to achieve 20 qualifying years for retirement purposes.  Therefore, the Board has determined, in this case, that the applicant’s excess retirement points should be redistributed to make him eligible for certification for non-regular retirement.

11.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

	a.  by taking four excess retirement points from RYE 1979/08/24 and applying them to RYE 1989/08/24, thus providing the individual concerned with 50 retirement points for RYE 1989/08/24 and providing him with an additional qualifying year (the 19th year) toward eligibility for Reserve retirement benefits at age 60;

	b.  by taking 23 excess retirement points from RYE 1974/08/24 and applying them to the RYE 1985/08/24, thus providing him with 50 retirement points for RYE 1985/08/24 and providing him with 20 qualifying years of service necessary for certification for entitlement to Reserve retirement benefits at age 60; and

	c.  by amending ARPERSCOM Order C-04-919949, dated 1 April 1999, to show an effective date of transfer to the Retired Reserve as of 1 September 1996 based on completion of 28 years of service instead of the current effective date of 1 April 1999.

2.  That upon completion of the administrative actions required by Paragraphs 1a through 1c, above, that ARPERSCOM recalculate the retirement points of the individual concerned, issue him a corrected Chronological Statement of Retirement Points and issue him a 20-Year Letter certifying eligibility effective 25 August 1989 for non-regular retired benefits at age 60.

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

BOARD VOTE:  

__EWL__  __KAK__  __GJW__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Ms. Karol A. Kennedy_
		        CHAIRPERSON

INDEX

CASE ID	AR2000039539	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001221	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	MR SCHNEIDER	
ISSUES         1.	113.0100.0000	
2.	135.0000.0000	
3.	135.0500.0000	
4.	136.0100.0000	
5.	136.0400.0000	
6.		

by US Army Reserve Personnel Command (AR-PERSCOM) Orders C-04-919949, dated 1 April l999.

10.  Paragraph 7-2 of Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) 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.  

11.  Paragraph 7-12 of Army Regulation 140-10 provides guidance on numbered exceptions to specific reasons for removal from an active reserve status.  It states in pertinent part that:  (a)  Exception to removal for failure to earn the required 50 retirement points may be authorized by the area commander for soldiers assigned to a Troop Program Unit (TPU), or the commander, ARPERCEN (DARP-PAT-I) for all other USAR soldiers as follows:  (a)(1) the solider requests a waiver and submits documentation to show that nonparticipation was due to circumstances beyond his or her control.  Such circumstances are defined as those of a personal or temporary nature such as extended illness or civilian employment interferences.  (a)(2) A waiver of nonparticipation may be granted only on a one time basis for failure to earn the required 50 points during a retirement year.  (b)  Officers having 18 or 19 years of qualifying Federal service for retired pay will not be removed without their consent.  Officers who meet this criteria on the date removal is required will be retained to complete 20 years. (1) (b)(1)  Retained officers will be informed they must notify the appropriate authority when the service is completed.  Retention is authorized until the earlier of these dates:  (b)(1)(a) the date on which 20 years of qualifying Federal service for retired pay is completed; or (b)(1)(b) three years from the required removal date for officers having at least 18 but less than 19 years of qualifying service; or (b)(1)(c) two years from the required removal date
for officers having 19 but less than 20 years of qualifying service.

12.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) 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 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.

13.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), indicates, in pertinent part, that to be eligible for retired pay, an individual needs not to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and, (3) served the last 8-years of his or her qualifying service as a Reserve component soldier.  

14.  That regulation also states in paragraph 2-3, that a 20-Year Letter will be issued to the Reserve component soldier within 1 year after they complete 
20 years of qualifying service for retirement.  This letter will be issued by the Chief, National Guard Bureau for ARNG soldiers, and the Commander, 
Army Reserve Personnel Command (AR-PERSCOM ) for USAR soldiers.  The letter, once issued, may not be withdrawn or revoked.  The soldier may voluntarily elect to transfer to the Retired Reserve or be discharged from the Army.

referral to a Medical Evaluation Board (MEB) will be made for mental disorders that

If certified for non-regular retirement based on 20 years of qualifying service, the applicant would begin receiving his Reserve retired pay and benefits when he reaches age 60 on 20 May 2003.

16.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as amended, provides the standards for medical fitness for retention and separation, including retirement.  Soldiers with medical conditions listed in this chapter should be referred for disability processing.

17.  Paragraph 3-31 of Army Regulation 40-501 discusses disorders with psychotic features.  Specifically this paragraph states causes for referral to a Medical Evaluation Board (MEB) are mental disorders not secondary to intoxication, infectious, toxic or other organic causes, with gross impairment in reality testing, resulting in interference with duty or social adjustment.