MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 July 2001                   
	DOCKET NUMBER:   AR2000049056

	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:

	Mr. Mark D. Manning		Chairperson	
	Mr. Lester Echols		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:  Reconsideration of his request for Reserve retirement benefits at age 60.

APPLICANT STATES:  That at the time he asked for a one-year extension in 1983, there was an error in his personnel records regarding time served.  Had his records been correct, showing that he had 19 years and 23 days of qualifying service, he may have gotten the extension his company commander requested.  In his original application, he noted that he was allowed to reenlist for a 6-year period commencing on 21 February 1981 without any limitation as to discharge at age 60.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 6 March 1985 (docket number AC84-07499) and reconsiderations on 2 October 1985 (docket number       AC84-07499A) and 20 May 1997 (docket number AC 84-07499E).  The Board staff had considered and denied his requests for reconsideration on 10 February 1986, 1 October 1986, 24 November 1989, 9 March 1990, and 24 May 1995.

The applicant was born on 24 July 1924.  After having had prior service and a   17 year and 3 month break in service, he requested enlistment in the U. S. Army Reserve (USAR) and a waiver to be able to complete 20 years of service.  The Reserve Components Personnel and Administration Center (RCPAC) advised that the age waiver, allowing him to enlist and remain in the USAR beyond the date he attained the maximum allowable age, was disapproved.  However, contingent upon signing a statement that he knew that he could not qualify for retirement prior to the date his removal from an active status would be required, his enlistment in the Ready Reserve would be approved.  He signed a statement acknowledging that he knew he could not qualify for retirement prior to the date of his removal from an active status as required by law; that he understood that his service would not qualify him for retirement benefits, and that his statement would be retained as a permanent document in his official records.  He enlisted in the USAR on 10 March 1974 in pay grade E-5.  On 8 March 1978, he reenlisted for 3 years.

On 14 December 1980, the applicant requested a waiver of the age requirement for reenlistment.  In January 1981, his chain of command recommended approval as the applicant would complete 20 years of qualifying service 11 months and   13 days after his 60th birthday.  On 4 February 1981, Headquarters, 5th Army recommended approval to permit his reenlistment for a period of 4 years with the stipulation that he be removed from an active status upon attaining age 60 if not sooner removed under other regulations.

On 22 February 1981, the applicant’s unit retention noncommissioned officer and unit commander reenlisted him for a period of 6 years.  
On 2 March 1981, RCPAC notified 5th Army that the waiver of age was approved provided the applicant was otherwise qualified for reenlistment and that the applicant had to be removed from an active status upon attaining age 60.  5th Army notified the Commander, 86th Army Reserve Command, that authority had been granted to allow the applicant to reenlist and that the applicant was to be advised that he would be removed from an active status upon attaining age 60.

In 1983, the applicant requested a waiver of his age in order to reenlist and that he be permitted to remain in the Ready Reserve until he had attained 20 years of service.  Chronological Records of Military Service, DA Forms 5016-R, dated    28 November 1983 and 21 March 1984 show that he was credited with 17 years, 2 months, and 7 days of qualifying service and 18 years, 7 months, and 24 days of qualifying service, respectively.  His requests were repeatedly disapproved, citing his 1974 statement of understanding that he would not be allowed to qualify for retired pay at age 60.

The applicant reached age 60 on 26 July 1984 and he was mandatorily discharged in pay grade E-6 on 31 July 1984 with 19 years and 13 days of qualifying service.

Pertinent regulations specify that to be eligible to reenlist in the Reserve, a member must be able to qualify for retired pay by age 60.  Except for those personnel granted a waiver, no provision was designed or intended to permit an enlisted member of the Reserve to remain in an active Reserve status beyond the last day of the month in which the member attained age 60.  Army Regulation 140-111, Table 4-1 provides that when the Commander, Army Reserve Personnel Command has determined that there is an implied or actual moral obligation incurred by the USAR to permit the member to remain in the Ready Reserve to qualify for retired pay, based on long service in the USAR, the member may be reenlisted to complete 20 qualifying years of service for retired pay by age 60.

Army Regulation 135-178 establishes policies and procedures governing the administrative separation of enlisted soldiers from the Army National Guard of the United States and the USAR.  In pertinent part, it states that a soldier may be discharged on the basis of an erroneous enlistment or extension if the enlistment or extension would not have occurred had the relevant facts been known by the Government or had appropriate regulations been followed; it was not the result of fraudulent conduct on the part of the soldier; and the defect is unchanged in material respects.  A soldier may be discharged when a defective enlistment or reenlistment agreement exists if a material misrepresentation is made by recruiting or retention personnel on which the soldier reasonably relied and thereby was induced to enlist or reenlist with a commitment for which the soldier was not qualified.  Also, the soldier must not have knowingly participated in the creation of the defective enlistment or reenlistment and he brought the defect to the attention of appropriate authorities within 30 days after the defect is discovered or reasonably should have been discovered by the soldier.

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.  There is no evidence of Government error in this case and the applicant has not shown to the Board that there is either an injustice or inequity in his case. 

2.  The applicant was given an age waiver to enlist in the USAR on 10 March 1974 contingent upon his acknowledging that he could not qualify for retired pay at age 60 by completing the required 20 qualifying years of service.  His signed acknowledgement is a matter of record.  

3.  In December 1980, the applicant applied for another age waiver.  He reenlisted on 22 February 1981 for 6 years.  However, his application for age waiver was not finally acted upon until 2 March 1981, when RCPAC notified 5th Army that the waiver of age was approved, provided the applicant was otherwise qualified for reenlistment and that the applicant had to be removed from an active status upon attaining age 60.  Once the applicant received the notice that he would not be allowed to remain in an active status beyond age 60, he had an opportunity to request separation for erroneous enlistment or defective enlistment.  He failed to do so.

4.  The applicant applied again for an age waiver in 1983 and 1984.  The evidence of record shows that his record of service was correctly computed, showing that he would have attained just over 19 years of qualifying service when he reached age 60.  He provides no evidence to show that his service was incorrectly computed at this time.  

5.  The Board concludes that there was no implied or actual moral obligation incurred by the USAR to permit the applicant to remain in the Ready Reserve to qualify for retired pay.  He knew from 1974 that he would not be allowed to remain in an active status beyond age 60 even though he would have had long service in the USAR by that time.  At no time was he obligated to reenlist.

6.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decisions.

7.  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

__mdm___  __le____  __gjw___  DENY APPLICATION

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

INDEX

CASE ID	AR2000049056	
SUFFIX		
RECON		
DATE BOARDED	20010719	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	135.03	
2.		
3.		
4.		
5.		
6.