MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            29 January 2002                  
	DOCKET NUMBER:   AR2001060564

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian 		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Karen A. Heinz		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 allowed to serve until the end of his enlistment.  

APPLICANT STATES:  In effect, that he should have been allowed to serve until the end of his enlistment, that he was discharged due to his age, and that his contract was breached.

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

He was born on 5 December 1938.  He enlisted in the United States Navy (USN) on 1 March 1956.  He was honorably released from active duty on 20 September 1957, and was transferred to the United States Naval Reserve (USNR)  

On 12 June 1962, he enlisted in the Indiana Army National Guard (INARNG).
He was ordered to active duty for training (ADT) on 29 June 1962, and was released from ADT on 14 December 1962.  He continued to serve in the INARNG until he was honorably discharged on 15 July 1963, in order to reenlist. He enlisted in the Regular Army on 16 July 1963.  He continued to serve until he was discharged under honorable conditions on 17 March 1964.

He enlisted in the USNR on 6 March 1965, and continued to serve until he was honorably discharged on 28 January 1966.

After a break in service, he reenlisted in the Regular Army on 2 April 1968, and continued to serve until he was discharged under honorable conditions on 1 November 1968.

He enlisted in the US Army Reserve (USAR) on 1 January 1975, for a period 
of 6 years.  He continued to serve until he was honorably discharged in order to reenlist.  He reenlisted on 11 January 1981, for a period of 6 years.  

On 14 December 1986, he extend his enlistment for a period of 3 years with 
an established expiration of term of service (ETS) of 10 January 1990.  

On 7 June 1988, he voluntarily transferred to the Illinois Army National Guard (ILARNG).  

On 18 November 1989, he extended his enlisted for a period of 6 years with an established ETS of 10 January 1996.

On 5 November 1995, at the age of 56 years and 11 months, he extended his enlistment for a period of 2 years and 1 month with an established ETS of 30 December 1998.  On 23 January 1996, the Illinois Army and Air National Guard notified the applicant that he had completed the required years of service to be eligible for retired pay at age 60 (20-Year Letter).

On 27 April 1996, he was honorably discharged from the ILARNG and was transferred to the USAR.  

The applicant’s records contain a copy of an Army National Guard Retirement Points History Statement, dated 10 June 1996, which shows that the applicant had completed 21 years of qualifying service for retirement purposes.

The records show that the applicant was transferred to the Retired Reserve on 25 September 1997, at his request, based on a nonparticipation notification from the Army Reserve Personnel Command (AR-PERSCOM).  He was placed on the Retired List on 5 December 1998 in the rank and pay grade of SGT/E-5, on his 60th birthday.

Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers.  Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.

Paragraph 7-3.1 of the regulation states that an enlisted solder who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status.  Enlisted soldiers who failed to attain 50 points by the anniversary of their retirement year ending (RYE) date, will be removed from an active status.

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.  The evidence of record shows that the applicant extended his enlistment for a period of 2 years, and 1 month at the age of 56 and 11 months, which established an ETS date of 30 December 1998.

2.  The Board notes that the applicant was transferred to the Retired Reserve on 25 September 1997, at his request, based on a nonparticipation notification from AR-PERSCOM.  The evidence of record shows that the applicant had accrued
20 years of qualifying service for retirement pay and was required to attain 50 points annually to be retained in an active status.  However, on 25 September 1997, he failed to obtain 50 points by the anniversary of his retirement year ending date, and was removed from an active status.

3.  The applicant completed the required years of service to be eligible for retired pay at age 60, and was placed on the Retired List on 5 December 1998, due to reaching his maximum age of 60.  Therefore, he was not entitled to serve until the end of his enlistment due to his mandatory release from an active status and there was no breach of contract broken in his case.

4.  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.

5.  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

_aao____  _mhm____  _kah___  DENY APPLICATION

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

INDEX

CASE ID	AR2001060564	
SUFFIX		
RECON		
DATE BOARDED	20020129	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19981205	
DISCHARGE AUTHORITY	AR 140-10 .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  	100	
2.		
3.		
4.		
5.		
6.