MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 July 2001                   
	DOCKET NUMBER:   AR2001055813

	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. John N. Slone		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. William D. Powers		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, that he be determined to be eligible for a non-regular retirement. 

APPLICANT STATES:  That when he was discharged he was never informed of the 8-year requirement to qualify for a non-regular retirement.  Regulations now require that the last 6 years of qualifying service be in a Reserve component.  He requests an exception to policy to allow him to qualify for a non-regular retirement under the current standards.

EVIDENCE OF RECORD:  The applicant's military records are not available.  Information contained herein was obtained from alternate sources.

The applicant was born on 8 March 1941.  He served in the Regular Army from  5 May 1959 – 24 January 1974.  He enlisted in the Army National Guard on      25 January 1974.  He was promoted to Staff Sergeant, E-6 on 1 December 1975. He was discharged from the Army National Guard and as a Reserve of the Army on 5 January 1981 under the provisions of National Guard Regulation 600-200, paragraph 7-9w (upon request for any reason by the individual who has no remaining Reserve obligation).  He apparently was not issued a notification of eligibility for retired pay (20-year letter).  He apparently served almost 22 years of qualifying service, the last 6 years and 11 months in a Reserve component.

Title 10, U. S. Code, section 12731(a) provides that a non-regular service member is entitled, upon application, to retired pay if the person is at least 60 years of age; has performed at least 20 years of qualifying service; and has performed the last 8 years of qualifying service while a member of a Reserve component.  

Title 10, U. S. Code, section 12731(d) provides that the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay.  The notice shall be sent, in writing, to the person concerned within one year after the person completes that service.  

Section 12731(f) was later added/amended to change the last 8 years of qualifying service requirement to, having completed the service requirement during the period beginning on 5 October 1994 and ending on 30 September 2001, shall have performed the last 6 years of qualifying service while a member of a Reserve component.

In the processing of this case, an advisory opinion was obtained from the National Guard Bureau (NGB).  The NGB opined that as the applicant separated more than 13 years prior to the 6-year eligibility period prescribed by law he was not eligible for the provisions of the 6-year rule and was and is subject to the      8-year clause.  

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

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, 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 evidence of record shows that the applicant was discharged from the Army National Guard and as a Reserve of the Army upon his request.  The Board concludes that it would have been reasonable for a noncommissioned officer to have inquired as to whether or not he met all the requirements for retired pay at age 60 prior to requesting separation.  Since it appears that he was never sent a 20-year letter, the Board concludes that it was not reasonable for him to have presumed that he was eligible for a non-regular retirement.  

3.  The 6-year requirement was established by Congress to aid in the force drawdown for a limited period of time.  The applicant did not separate during the drawdown period.  It would not be appropriate to grant him an exception to policy to allow him to take advantage of a policy that did not exist at the time he separated.  

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

__jns___  __mvt___  __wdp___  DENY APPLICATION

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

INDEX

CASE ID	AR2001055813	
SUFFIX		
RECON		
DATE BOARDED	20010724	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	136.04	
2.		
3.		
4.		
5.		
6.