PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            23 January 2001
	DOCKET NUMBER:   AR2000041175

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		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, waiver of either the requirement to complete six (6) years in the Army National Guard (ARNG) or the age 60 requirement for retirement.

3.  The applicant states, in effect, that he completed over 22 years of military service which should qualify him for retirement.  He claims that recently members have been retired with as little as 15 years and his not being allowed to retire after completing 22 years of service would be unjust.  He also contends that he was assured by ARNG officials on numerous occasions that he would be able to qualify for retirement.  ARNG officials were fully aware of his age at the time he was enlisted and that the reason he was enlisting was to qualify for retirement.  He also indicates that he was informed that he would be forced out of the ARNG on his 60th birthday, 26 April 2000, and that he would not be eligible to draw retirement pay.  He contends that he should be properly compensated for his over 22 years of service.

4.  The applicant’s counsel states, in effect, that the issue at hand in this case is whether the applicant falls under the six (6) or eight (8) year minimum service in the ARNG for retirement eligibility rule.  He enlisted in the ARNG in 1998, when the minimum time in the ARNG requirement was 6 years.  The revised 8 year rule did not become effective until 1999.  Therefore, in the opinion of counsel, he should only be required to complete 6 years in the ARNG in order to qualify for retirement because this was the rule in effect at the time of his enlistment.  In addition, he would not have reached his 64th birthday prior to completing that 
6 years service in the ARNG requirement; thus, relief is warranted in this case.  

5.  The record shows that the applicant served on active duty in the Regular Army on active duty for 17 years, 4 months, and 13 days.  He was discharged on 1 November 1976 and there is a Department of Defense (DD) Form 214 
(Report of Separation From Active Duty) on file which codifies this service.  This document confirms that the applicant held the rank of major/0-4 on the date of his separation from active duty.  

6.  The applicant’s service record indicates that during his active duty service he served in Vietnam and earned the National Defense Service Medal, Parachutist Badge, Army Aviation Badge, Vietnam Service Medal, Republic of Vietnam Campaign Medal, and Air Medal.  

7.  On 10 February 1998, the applicant enlisted in the ARNG for 2 years, 
2 months, and 16 days.  His age at the time of this enlistment was  57 years, 
9 months, and 15 days and his expiration of term of service was established as 25 April 2000 to coincide with his 60th birthday.  At the time of this enlistment he had already accrued a total of 19 years, 10 months, and 26 days of service creditable for retired pay.
8.  On 10 March 2000, the applicant’s battalion commander prepared a memorandum, subject: “Retirement Eligibility” pertaining to the applicant.  This document was prepared to provide findings in regard to retirement and age issues raised by the applicant.  The commander indicated that the applicant had admitted at the time of his enlistment in the ARNG that he may not be entitled to retired pay based on the mandatory age and service requirements.  The applicant’s enlistment in the ARNG was for a period that took him to his mandatory retirement age of 60.  Subsequent to this enlistment in the ARNG, an after-the-fact waiver of enlistment age was requested by the Personnel Directorate of the Ohio ARNG.  

9.  Acting on the waiver request submitted by the State of Ohio, the National Guard Bureau (NGB) forwarded the applicant a statement in which he was asked to acknowledge that, by law, he was required to complete 6 years of service in a Reserve Component (RC) to qualify for a non-regular retirement, and that furthermore, since he was 58 years of age at the time of his enlistment in the ARNG, he could not retire at age 60 and therefore, would not qualify for a 
non-regular retirement.  The applicant acknowledged receiving this letter but that he had disregarded it and the requirement for him to sign the statement in connection with his waiver request.  

10.  The battalion commander concluded that the applicant’s request for a waiver of the age requirement could not be approved because the law did not allow for a soldier to be extended beyond age 64.  It was explained that the while the applicant would complete 6 years of service in the RC prior to reaching age 64, this last 6 years in the RC service requirement was an exception to policy that would expire prior to the applicant completing his obligation in 2003 and the service obligation would revert back to the last 8 years.  Because of this, the battalion commander explains that it would be impossible for the applicant to complete the RC service requirement prior to reaching age 64 and therefore, he would be required to separate upon reaching the age of 60. 

11.  The battalion commander concluded his memorandum by indicating that it was unfortunate for the applicant to fully realize he was ineligible for retirement pay after completing 22 years of military service, but even he admitted that he understood that his retirement eligibility was in speculation when he enlisted in the ARNG.  

12.  The applicant provided a rebuttal to the battalion commander’s findings and indicated that while it was true that no promises were made to him when he enlisted in the ARNG, every person he dealt with knew that he was enlisting for the purpose of qualifying for retirement pay and all led him to believe that once in the ARNG there would be no problem receiving an age waiver to stay past age 60 for the purpose of obtaining retirement eligibility.
13.  The applicant also commented that after his enlistment he checked with his unit commander who verified with personnel officials that an age waiver for him to remain in the ARNG until he reached age 64 would not present a problem if he were still able to pass the Army Physical Fitness Test (APFT) and he remained in good health.  He claimed that when he requested the waiver he was still able to pass the APFT and was in good health.  He concluded that he is not asking for something that is not normally done and indicates that he would complete the last 6 years of RC service requirement prior to reaching age 64 and should be afforded the opportunity to complete the service necessary to qualify for retirement based on the policy in effect at the time of his enlistment.  This policy was clearly understood by him and by recruiting officials to be that the RC service obligation was the last 6 years and not the last 8 years.  Therefore, it would have been appropriate for him to have been grandfathered under the rules in effect at the time he enlisted in the ARNG.  

14.  National Guard Regulation 600-200 ( Enlisted Personnel Management) provides the policy pertaining to the procuring and retaining of enlisted personnel.  Chapter 2 pertains to the enlistment, reenlistment, and extension of enlisted personnel of the ARNG.  Paragraph 2-8 provides guidance on those persons ineligible for reenlistment without a waiver.  Subparagraph (g) specifically contains guidance pertaining to the extension or reenlistment of members beyond the age of 60.  It states, in pertinent part, that members who are not eligible for retirement upon reaching the age of 60 but who could qualify prior to attaining the age of 64, may be extended for a period equal to the remaining period required for qualification.  

15.  Title 10 of the United States Code, section 12731 provides the legal authority for the age and service requirements policy on a members entitlement to retired pay retired pay as a result of a non-regular retirement.  It states, in pertinent part, that members are entitled to retired pay when they are at least 60 years of age; have performed at least 20 years of service, of which the last eight years of qualifying service was as a member of a Reserve Component.  Public Law 
103-337 provided for allowing a substitution of the last 8 year RC service requirement to the last 6 years for the period between 1994 and 30 September 1999, which has later been extended to the year 2003.

CONCLUSIONS:

1.  The Board noted the contention of the applicant and his counsel that the service obligation policy in effect on the date of his enlistment in the ARNG should apply to him and he should only be required to serve his last 6 years of service in the RC in order to qualify for retired pay.  This they contend was the RC service obligation applicable to non-regular retirement eligibility at the time he enlisted in the ARNG, and the Board finds that this claim has merit.  
2.  At the time of the applicant’s enlistment in the ARNG, the law allowed, as an exception to policy, that a member could retire, under non-regular retirement provisions of the law, if they had completed the last 6 years of their service in a RC and met all other retirement eligibility criteria.  

3.  The Board noted that in February 1998, at the time of his enlistment in the ARNG, the applicant was almost 58 years of age and had completed almost 
20 years of the necessary qualifying creditable service for retirement pay.  In the opinion of the Board, it is reasonable to presume that the applicant’s primary motivation for enlisting in the ARNG was to obtain retirement eligibility and that he had a reasonable expectation that he could accomplish this goal at the time of his enlistment. 

4.  The evidence of record clearly indicates that the applicant believed that if he obtained an age waiver to remain in the ARNG until he reached age 64 he would qualify for retirement.  Further, the evidence shows that this belief was reinforced by both recruiting officials and members of his chain of command at the time of his enlistment and shortly thereafter. 

5.  In addition, the Board finds it likely that recruiting officials were under the impression that the applicant could satisfy all service obligations necessary to qualify for retirement if he were granted a waiver to extend his enlistment through age 64, which confirms their belief was that the applicable RC service obligation for the applicant was the last 6 years, not the last 8 years.  

6.  National Guard regulations clearly allow for a member to be enlisted with a waiver even if they will not satisfy all the prerequisites for non-regular retirement eligibility by the time they reach age 60.  However, these regulations also contain special extension provisions which allow members who exceed 60 years of age to extend their enlistment in the ARNG until they reach the age of 64, in order attain retirement eligibility, if they are otherwise qualified.  

7.  By law, a member must complete the last 8 years of qualifying service for retirement in a RC in order to qualify for a non-regular retirement but an exception to the law, which required that members only complete the last 6 years of qualifying service in the RC in order to qualify for non-regular retirement, was in effect at the time of the applicant’s enlistment in the ARNG.  However, even if the applicant were granted an age waiver and allowed to extend his service in the ARNG until age 64, this exception will expire prior to his completing his 
RC service and reaching the age of 64 in the year 2003.

8.  Although the Board believes that the merits of the applicant’s case rest on the injustice that resulted to him as a result of his being led to believe he could obtain retirement eligibility if granted an age waiver to remain in the ARNG until age 64, the Board finds his extension in the ARNG would not provide the best resolution of this case at this time.

9.  In view of the circumstances in this case, the Board finds that the most feasible way to arrive at a fair and just resolution in this case would be to correct the applicant’s records to show that his last 8 qualifying years were Reserve service for retired pay at age 60 based on his having completed over 21 years of qualifying years of service for retired pay.  

10.  This solution is considered appropriate as a matter of equity, fairness, and compassion, and is supported by the fact that the applicant served over 19 years of honorable active duty service, which included a combat tour in Vietnam, and completed over 21 years of honorable service creditable for retired pay.  Thus, the Board concludes that the applicant’s last 8 qualifying years of service should be changed to RC duty and he should be given this status in order to qualify for retired pay at age 60.

11.  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 be corrected by showing:

a.  that individual concerned completed his last 8 years of qualifying service in a Reserve Component status;

b.  that on 26 April 2000 he was transferred to the Retired Reserve at age 60 after completing over 21 years of qualifying service for retired pay; and 

c.  by providing the applicant retired pay and all associated benefits and entitlements based on his completion of the qualifying service, effective 26 April 2000, and any back pay due as a result.

BOARD VOTE:  

__teo ___  __wtm___  __ls ____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Luther L. Santiful_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000041175	
SUFFIX		
RECON		
DATE BOARDED	2001/01/23	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	2000/04/26	
DISCHARGE AUTHORITY	NGR 600-200	
DISCHARGE REASON	ETS 	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  338	136.0000	
2.		
3.		
4.		
5.		
6.