MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           26 JULY 2001                  
	DOCKET NUMBER:   AR2001055223

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor 		Chairperson	
	Mr. Hubert O. Fry		Member	
	Mr. Eric N. Andersen 		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:  In effect, retirement pay at age 60 based on 15 years of nonregular service. 

APPLICANT STATES:  That she was reassigned to the Retired Reserve after         15 years of faithful service on 21 August 2000.  The basis for her transfer to the Retired Reserve was because of her medical condition, a neurological disorder and subsequent depression, brought about by a head injury.  She has served in the Selected Reserve.  Her last assignment was in the Individual Ready Reserve (IRR).  Limiting the 15 year retirement only to current members of troop program units (TPU) seems unfair.    

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

A document which the applicant submits shows that her principal military assignments included a combination of TPU, IRR, and IMA (Individual Mobilization Augmentee) assignments.  That document shows that on 15 September 1989 she was assigned to the Army Reserve Control Group (Reinforcement), and on                9 April 1993 while assigned to that control group was attached to an Army Reserve linguist unit at West Point. 

On 24 April 2000 the Army Reserve Personnel Command notified the applicant that she did not meet the standards for retention in the Army Reserve due to her neurological disorder and depression problems.  She was told that she had to either elect discharge from the Army Reserve, transfer to the Retired Reserve, or a fitness for duty evaluation.  On 5 May 2000 she elected transfer to the Retired Reserve.  She was transferred effective on 21 August 2000.

A 15 September 2000 chronological statement of retirement points shows that she had 15 years of qualifying service for retired pay as of her retirement year ending date of 29 August 1998. 

Title 10, United States Code, section 12731a allows members of the Selected Reserve 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.  

In the processing of this case an advisory opinion was obtained from the Office of the Chief of the Army Reserve (OCAR).  That agency stated in effect that the applicant was not eligible for retirement based on 15 years of qualifying service because she was not a Selected Reserve member at the time of her transfer to the Retired Reserve.

On 19 June 2001 the applicant submitted a rebuttal to the advisory opinion, stating that she did meet all the requirements for early Reserve retirement, except for being a member of the Selected Reserve at the time of her reassignment to the Retired Reserve.  She stated that she had been a Selected Reserve member for a number of years, but completed the last part of her military career in the IRR.  She stated that she had been advised to spend time in different Reserve programs to get a varied depth of assignments, and was a mobilization asset no matter the program she was in.  She stated that to penalize her by denying her eligibility in the early Reserve retirement program based on her last assignment was patently unfair and capricious.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant had not been a member of the Selected Reserve since 1989.  The law is specific.  She is not entitled to retired pay at age 60.  There is no error and there is no injustice done to her, regardless of her contentions to the contrary.

2.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

3.  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 that requirement.

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

__RVO__  __HOF  _  __ENA __  DENY APPLICATION

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

INDEX

CASE ID	AR2001055223	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010726	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	136.00	
2.	338	
3.		
4.		
5.		
6.