MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            2 November 2000
	DOCKET NUMBER:   AR2000040711

	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	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. William D. Barr		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 she be granted a waiver of 9 months and 19 days of service to qualify for retirement at age 60 in the United States Army Reserve (USAR).

APPLICANT STATES:  That she was informed by the personnel staff noncommissioned officers (PSNCO) in both of the USAR Troop Program Units (TPU) she was assigned to that all she needed to retire was 20 years of service, over 2,000 points, and at least 8 years of service without a break.  She goes on to state that she stopped attending Reserve meetings once she had accumulated the time she needed and was given an honorable discharge in 1993.  On 11 September 1998 she received a Direct Deposit Form to fill out and she returned it to St. Louis, Missouri.  She continues by stating that she felt assured that she would begin receiving her Retired pay at age 60.  However, on 20 October 1999, she was informed that she was ineligible for retirement at age 60 because she only had 19+ creditable years of service and needed 9 months and 19 days of creditable service to qualify for retirement.  She also states that in October 1996, she suffered a stroke that disabled her and qualified her for full disability under Social Security and contends that had she been properly informed that she did not have enough service to qualify for retirement, she could have continued to serve until such time as she obtained that service; however, at this point she can no longer perform the necessary service to qualify.  Additionally, she states that it is imperative that she be allowed to draw her military retirement because she has served her 20 years while planning for retirement and if not allowed to draw her retirement, she will have to survive at a much lower standard of living than a military veteran is entitled. 

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

She initially served in the Air Force from 14 July 1958 until she was honorable discharged on 9 August 1960.

On 16 October 1974 she enlisted in the USAR for a period of 1 year and assignment to a TPU in Willmar, Minnesota.  She continued to serve through a series of continuous reenlistments and was promoted to the pay grade of E-5 on 18 July 1976.  She served briefly with a USAR unit in Connecticut before she was transferred to the USAR Control Group (Reinforcement) on 15 June 1989. 

On 31 October 1989 she was transferred to a TPU in Waycross, Georgia and was promoted to the pay grade of E-6 in that unit on 30 January 1992.

The applicant’s commander sent her a memorandum of instruction on 15 April 1993 regarding her unexcused absence from annual training.  It informed her, in effect, that because her absence was unexcused, she would be discharged on her expiration of term of service (ETS).  The applicant signed for the Certified Mail on 22 April 1993 and orders were published on 28 July 1993 (her ETS) which discharged her from the USAR due to ETS. 

A Chronological Statement of Retirement Points (DARP Form 249-2-E) contained in her official records dated 14 November 1990 show that at that time (23 June 1990), the applicant had 16 years, 2 months, and 13 days of qualifying service for retirement. 

A review of retirement points provided to the Board by the Army Reserve Personnel Command (ARPERSCOM) on 23 June 2000 shows that the applicant had 19 qualifying/creditable years of service as of 28 July 1993, the date she was discharged.  It also shows that she had non-qualifying years of service (failed to attain 50 qualifying points in a year) in 1960, 1979, 1988, and 1993.

A review of her records failed to show that she was ever issued a 20-year letter or that she was ever notified that she qualified for retirement at age 60 (19 December 1999).

Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 7 of that regulation relates to 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. 

Army Regulation 135-178, in effect at the time, established the policies, standards, and procedures governing the administrative procedures governing the administrative separation of enlisted soldiers from the Reserve Components. Paragraph 1-3 states, in pertinent part, that orders discharging a soldier would not be revoked or the effective date changed after the effective date of discharge unless there was a manifest error or fraud.  After the effective date of discharge, orders could not be amended by the separation authority only to correct manifest errors such as the wrong character of service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.

Army Regulation 135-180 implements the statutory authority governing the granting of Retired pay to soldiers of the Reserve Components.  It states, in pertinent part, that to be eligible for Retired pay, a person must have attained age 60, have completed a minimum of 20 qualifying years of service and have served the last 8 years of his or her qualifying service as a Reserve Component soldier.  Service creditable as a qualifying year is one in which the Reservist is in an active status and earns a minimum of 50 qualifying points during the retirement year.

That regulation also provides, in pertinent part, that under section 1331(d) of title 10, United States Code (USC), each Reserve component soldier who completes the service required to be eligible for Retired pay at age 60 will be notified in writing within 1 year after he or she has completed that service in the form of a 20-year letter.  A copy of the notification will become a part of the Official Military Personnel File (OMPF). 

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

1.  The applicant’s honorable discharge from the USAR was accomplished in accordance with law and regulations applicable at the time.

2.  The applicant’s contentions have been noted by the Board; however, they are not supported by the evidence submitted with her application or the evidence of record.  The applicant was notified that she would be discharged on her ETS due to not having attended her annual training and there is nothing to suggest that she was ever notified that she had attained the necessary service required to qualify for retirement at age 60.  

3.  The Board also notes that in June 1990 her retirements points had been computed and showed that she only had 16 qualifying years of service for retirement.  Accordingly, it was incumbent on the applicant to ensure that she had the required years of service to qualify for retirement before she decided that she would no longer serve in the USAR.

4.  While the Board is sympathetic to the applicant’s present situation, she had submitted no evidence to substantiate that she was incorrectly informed that she had sufficient service to qualify for retirement at age 60.  Accordingly, in the absence of evidence to show that an error or injustice occurred, the Board finds no basis to grant her credit for service she did not perform.  To do so would be to afford her a benefit that is not afforded to others in similar circumstances.

5.  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.

6.  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

___fe ___  ___tsk __  __wdb___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040711	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/11/02	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  334	135.0200/RET PT CREDIT	
2.		
3.		
4.		
5.		
6.