PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            5 December 2000                  
	DOCKET NUMBER:   AR2000049115

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell 		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Jose A. Martinez		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.  In effect, the applicant requests that his military records be corrected to show that he was retired under the provisions of Public Law 103-337, section 517    (15-year retirement law) so as to be eligible for Reserve retired pay at age 60, instead of being discharged. 

3.  The applicant states that he is eligible for retired pay at age 60 under the provisions of Public Law 103-337, provided he is in the Retired Reserve.

4.  On 16 December 1992 the Total Army Personnel Command (PERSCOM) directed that the applicant be discharged from the Reserve of the Army because of his disability, with a disability rating of 10 percent.

5.  On 21 December 1992, Headquarters, United States Army Field Artillery Center and Fort Sill published an order releasing the applicant from active duty and discharging him from the Reserve of the Army because of his disability.
That order directed that he be granted severance pay.

6.  National Guard Bureau Form 22 (Report of Separation and Record of Service) shows that the applicant was discharged from the Army National Guard of Arkansas and as a Reserve of the Army on 23 December 1992.  The applicant’s retirement points history statement shows that as of 23 December 1992 he had 19 years, 3 months, and 23 days of qualifying service for retired pay at age 60.

7.  In a 1 September 1998 memorandum to the Army Physical Disability 
Branch, the Office of the Adjutant General for the Military Department of Arkansas requested that the order discharging the applicant from the Reserve of the Army be amended to show that he was transferred to the Retired Reserve, in order to receive retired pay at age 60.  That agency indicated that the applicant met the requirements for transfer to the Retired Reserve with 15 years of service. It also indicated that the applicant had been informed that he must pay back all of the disability severance pay he received before he could receive retirement pay. 

8.  A 5 January 1999 letter from the VA Regional Office in Little Rock, Arkansas informed the applicant that their records showed that he received a lump-sum severance payment of $21,672.00.   

9.  In the processing of this application an advisory opinion was obtained from the National Guard Bureau.  That agency stated that the applicant met the requirements for transfer to the Retired Reserve with entitlement to retired pay at age 60, and recommended that the applicant’s request be granted.  The applicant concurred with the advisory opinion.  

10.  The National Defense Authorization Act for Fiscal Year 1995 (Public Law 103-337) amended Title 10, United States Code, section 1331a©.  Now codified under section 12731a, the provisions of that law allow Reserve component soldiers who are involuntarily separated between 23 October 1992 and                1 October 2001 because of medical unfitness to elect transfer to the Retired Reserve for Reserve retirement pay at age 60 based on a minimum of 15 years of qualifying service toward Reserve component retirement.

CONCLUSIONS:

1.  The applicant had over 19  years of qualifying service for retired pay.  He is entitled to be transferred to the Retired Reserve under the provisions of           Title 10 of the U.S. Code.  Accordingly, his discharge as a Reserve of the Army on 23 December 1992, depriving him of Reserve retirement pay at age 60 and other benefits, is unjust. 

2.  Consequently, in all fairness to the applicant, that portion of Headquarters, United States Army Field Artillery Center and Fort Sill order that discharged him from the Army Reserve and awarded him severance pay with a 10 percent disability rating should be null and void and of no force or effect.   

3.  He should be transferred to the Retired Reserve with entitlement to Reserve retired pay at age 60 under the provisions of the Title 10, Section 12731a of the U.S. Code. 

4.  Notwithstanding the information provided to the applicant by the VA, the amount of severance pay that the applicant received is unknown.  Nonetheless, the applicant should be required to reimburse the government the full amount of the severance pay that he received upon his discharge in 1992.  

5.  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: 

     a.  by amending the order published by Headquarters, United States Army Artillery Center and Fort Sill, which discharged the applicant from the Reserve of the Army on 23 December 1992 and which awarded him severance pay with a 10 percent disability rating.  That portion of the order is null and void and of no force or effect; and

     b.  by transferring the applicant to the Retired Reserve with entitlement to Reserve retired pay at age 60 under the provisions of Section 12731a, Title 10 of the U.S. Code.
    
BOARD VOTE:  

___amc__  ___jam__  ___alr___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000049115	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001205	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.  341	110.00	
2.	135.00	
3.	136.00	
4.		
5.		
6.