MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 December 2000                   
	DOCKET NUMBER:   AR2000048995

	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. Karol A. Kennedy		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Ms. Gail J. Wire		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 authorized a 20-year, reserve retirement. 

APPLICANT STATES:  That on 6 May 1968, he was transferred to the U. S. Army Reserve (USAR) Standby Reserve and placed on the Roll of Retired Iowa National Guard Officers.  When he turned 60 in 1983, he was informed that he did not have quite enough time to earn the 20-year reserve retirement.  He assumed the information was creditable and did not pursue the issue until recently.  He sincerely believes that the personnel handling his separation from the Army National Guard (ARNG) in 1968 lacked the knowledge of the retirement system.  He was separated to the Standby Reserve when he probably should have been separated to the Retired Reserve.  The personnel processing his separation in 1968 thought he had 20 creditable years and so did he.  In June 2000, competent personnel from the Office of the Adjutant General, Iowa reviewed his case and determined that he was eligible for and so issued him a notification of eligibility for retired pay at age 60 (a 20-year letter).  Although the Army Reserve Personnel Command (AR-PERSCOM) said the Iowa ARNG did not have the authority to issue the letter, it is his understanding that they not only have the authority but the regulatory requirement to publish these letters when they determine a member is eligible.

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

He was born on 14 July 1923.  After having had prior service in the U. S. Navy, he enlisted in the ARNG on 17 October 1950.  He was appointed a warrant officer in the ARNG on 24 June 1955.  

On 6 May 1968, the Iowa ARNG withdrew the applicant’s Federal recognition whereupon he became a member of the USAR and assigned to the Standby Reserve.  He was assigned to the Roll of Retired Iowa National Guard Officers.

On 14 April 1969, the U. S. Army Administration Center (USAAC) informed the applicant that a recent change in regulations provided that non-obligated officers were not eligible for transfer to or retention on the active list of the Standby Reserve unless they had completed 18 qualifying years of service and were being retained to complete 20 years.  He was offered four options, each of which was explained, and on 30 May 1969 he elected transfer to the Retired Reserve.

On 23 July 1969, USAAC wrote the applicant informing him that the records showed he had completed 19 years, 9 months and 9 days of creditable service for retirement as of 16 October 1968 and accordingly he was not then eligible to receive his 20-year letter.  

On 1 August 1969, USAAC wrote the applicant referencing his election of transfer to the Retired Reserve.  He was again informed that he was not eligible to receive a notification of eligibility for retired pay at age 60 as he had completed only 19 years, 9 months and 9 days of creditable service for retirement as of     16 October 1968.  USAAC suggested that he submit a request subsequent to his retirement year ending (RYE) 16 October 1969, submitting copies of evidence that he accrued 50 retirement points.  He was informed, however, that he could request transfer at the current date regardless of whether he was credited with 20 qualifying years.  Another election form was provided for his use.  The applicant completed it on 25 August 1969 and again requested transfer to the Retired Reserve.

On 15 September 1969, the applicant was transferred to the USAR Control Group (Retired).  

On 22 June 2000, the Iowa ARNG prepared a Retirement Points History Statement.  Up through RYE 16 October 1967, it shows that the applicant completed 19 years, 9 months and 17 days of qualifying service.  The last entry is for RYE 6 May 1968 for which the applicant earned 30 retirement points for     6 months and 20 days of creditable service for retired pay.  The Iowa ARNG then added this 6 months and 20 days to the 19 years, 9 months and 17 days and determined the applicant completed 20 years, 4 months and 7 days of creditable service for pay.  Based upon this calculation, the Iowa ARNG sent the applicant a 20-year letter.

Based upon the 20-year letter, the applicant applied for retired pay.  AR-PERSCOM informed the applicant that his records showed that he had 19 years, 9 months and 17 days of qualifying service, that there was no record to show that he earned retirement points after 6 May 1968, and that therefore he was ineligible to receive retired pay.  AR-PERSCOM informed the Iowa ARNG that the applicant required 50 points for the retirement year 17 October 1967 through 16 October 1968 in order for that year to be a qualifying year.  AR-PERSCOM also informed the Iowa ARNG that, since the ARNG had withdrawn Federal recognition from and transferred the applicant to the USAR, they had no authority to issue a 20-year letter.

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

At the time sections 1331 through 1337 of Title 10, U.S. Code authorized 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.

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.  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 applicant was fully aware in 1969 that he had only 19 years and 9 months of qualifying service, not enough to qualify for retired pay at age 60.  In April 1969 he was informed that as a non-obligated officer he was no longer eligible for retention on the active list of the Standby Reserve.  However, he was also informed that one of his options was to request retention in the Ready Reserve in order to complete 20 years if he had over 18 years of qualifying service.  On     30 May 1969, he decided to elect transfer to the Retired Reserve.  In July 1969, USAAC questioned his election in light of the fact he had less than 20 qualifying years required for retired pay and gave him an opportunity to withdraw his election to transfer to the Retired Reserve.  On 25 August 1969, he still elected transfer to the Retired Reserve.

3.  When the ARNG withdrew Federal recognition from the applicant, it lost all rights to administrative control over him.  The Iowa ARNG had no authority to issue a 20-year letter 30 years after they withdrew his Federal recognition.  In addition, the applicant did not earn 50 retirement points during the final retirement year the Iowa ARNG erroneously used in calculating his creditable service.  Therefore, it cannot be counted as a qualifying year.  The Board does not know what the requirements were for a member to be placed on the Roll of Retired Iowa National Guard Officers but placement on that Roll does not meet the statutory requirement for eligibility for retired pay at age 60.  

4.  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

__kak___  __ewl___  __gjw___  DENY APPLICATION

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

INDEX

CASE ID	AR2000048995	
SUFFIX		
RECON		
DATE BOARDED	20001221	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	136.03	
2.		
3.		
4.		
5.		
6.