PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           9 January 2001                   
	DOCKET NUMBER:   AR2000043991

	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	
	Mrs. Nancy Amos		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, that he be authorized a 20-year, reserve retirement.  

3.  The applicant states that when he was passed over for promotion for the second time and informed, in 1989, that he would be discharged, his records showed that he was credited with only 15 years of qualifying service.  After his discharge, he requested his retirement point history and discovered he had not been credited with service between 1960 and 1964, between 1971 and 1972, and for annual training in August 1972.  The latest printout he received continues to show some of the initial omissions; however, it shows that he completed at least 19 years of qualifying service.  He should have been allowed to remain in to complete 20 qualifying years.

4.  The applicant’s military records show that he was born on 12 February 1940.  After having had prior enlisted service in the U. S. Army Reserve (USAR), he was commissioned in the USAR on 18 March 1966.

5.  The lieutenant colonel promotion board which convened on 3 September 1986 did not select the applicant for promotion for the second time.  On 3 August 1989, he was notified that he had been twice not selected for promotion to lieutenant colonel and that his mandatory removal date had been 2 February 1987.  Since his records at the time reflected that he had less than 18 years of qualifying service, he was not afforded the opportunity to be retained in an active status until he was credited with 20 years of satisfactory Federal service for retired pay purposes.  He was eligible for transfer to the Retired Reserve.  He did not reply to this notification with its attached election of options statement and so orders dated 19 September 1989 were issued discharging the applicant with an effective date of 2 February 1987.

6.  The applicant’s retirement points history statement dated 25 January 1991 show corrected retirement years ending (RYE) 4 January 1962, 4 January 1963, and 4 January 1964 thereby crediting him with qualifying years for those RYEs.  RYE 4 January 1972 still showed him with 142 points for a qualifying year.  RYE 4 January 1973 still showed him with 15 points, not enough for a qualifying year. 

7.  The applicant’s retirement points history statement dated December 2000 made further point corrections to RYEs 24 November 1964 and 4 January 1965 but no change in the number of qualifying years was thereby made.

8.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR soldiers.  In pertinent part, it states 

that an annual statement of retirement points is prepared for all soldiers regardless of the number of points awarded.  This statement gives a permanent record of the total retirement points a soldier earns during a retirement year, tells the soldier whether he/she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status, and gives the soldier an opportunity to request correction of errors in the statement.

9.  Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers.

10.  Sections 12731 through 12738 of Title 10, U.S. 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.  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.

11.  Title 10, U. S. Code, section 12646(b) states that, if on the date prescribed for the discharge or transfer from an active status of a reserve commissioned officer he is entitled to be credited with at least 19, but less than 20, years of service, he may not be discharged or transferred from an active status without his consent before the earlier of the date on which he is entitled to be credited with 20 years of qualifying service or the second anniversary of the date on which he would otherwise be discharged or transferred from an active status.

CONCLUSIONS:

1.  The Board agrees that an injustice has occurred in this case.  Although the applicant bears some responsibility for not requesting correction of his retirement point history statements well before he was notified of his pending discharge in 1989, the record as it stands today does show that he had 19 years of qualifying service as of 1989.  As such, he should have been afforded the opportunity to remain in an active status until he attained 20 qualifying years or for two additional years, whichever came first. 

2.  The applicant’s RYE 4 January 1972 is already a qualifying year; any further points the applicant earned would not gain him an additional qualifying year.  Since the applicant has not provided evidence to show he earned active duty points or enough other points for RYE 4 January 1973 to credit him with a qualifying year, it would be appropriate to show he earned his 20th qualifying year by adjusting his retirement points.  Therefore, it would be appropriate to subtract 

20 retirement points from RYE 4 January 1979 and adding them to RYE               4 January 1983 to show that he earned 50 points that RYE and thus an additional qualifying year, thereby making him eligible to receive retired pay at age 60.

3.  If the applicant should locate evidence to show he earned additional retirement points, he should contact the Army Reserve Personnel Command first and return to the Board for relief only if the Army Reserve Personnel Command does not give satisfactory relief.

4.  Since the applicant’s discharge had been effective 2 February 1987, he would not normally be allowed to retain 15 membership points for RYEs 4 January 1988 and 4 January 1989 for pay purposes.  However, since his discharge orders were not issued until 19 September 1989, it would be appropriate to allow him to retain those points for pay purposes as an exception to policy.

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

RECOMMENDATION:  

1.  That all of the Department of the Army records related to this case be corrected by:
a.  adjusting the applicant’s RYE 4 January 1979, inactive duty points to show he earned 23 inactive duty points and a total of 59 points and adjusting his RYE 4 January 1983, inactive duty points to show he earned 21 inactive duty points and a total of 50 points to provide him with a qualifying year of service for RYE 4 January 1983; 
b.  issuing him a certificate of eligibility to show that he is entitled to Reserve retired pay at age 60; 
c.  showing that he applied for retired pay and paying him any and all due back retired pay retroactive to 12 February 2000; and
d.  computing his retired pay to include the membership points he earned in RYEs 4 January 1988 and 4 January 1989 as an exception to policy.

2.  The Army has an established program to counsel retiring soldiers on the rights, benefits, and privileges afforded as a result of military retirement.  Retirement Services Officers (RSO) are available at most major Army installations to provide a retirement briefing, which includes information on the Survivor Benefit Plan (SBP).  The applicant is advised to contact her nearest RSO (list enclosed ) as soon as possible to facilitate a smooth transition to retired status.

BOARD VOTE:  

__mdm___  __clg___  __ena___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Mark D. Manning
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000043991	
SUFFIX		
RECON		
DATE BOARDED	20010109	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	135.02	
2.	135.03	
3.		
4.		
5.		
6.