MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           1 November 2001
	DOCKET NUMBER:   AR2001062252

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Arthur A.Omartian		Member	
	Mr. Curtis L. Greenway		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 granted service credit for Reserve service between 1946 and 1949 and retired pay.

APPLICANT STATES:  In effect, that he should be credited with service in the United States Army Reserve (USAR) from 1946 through 1949 that would count as qualifying service for non-regular retired pay.  

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

He served on active duty a total of 15 years 2 months, and 13 days in the status indicated during the following periods:  enlisted-14 January 1942 to 23 June 1943; commissioned officer-24 June 1943 to 22 March 1946; enlisted-19 March 1951 to 22 March 1962.  

On 12 February 1962, the applicant submitted a voluntary request that he be discharged from the Army for hardship reasons.  In his request, the applicant acknowledged that he would suffer the loss of retirement benefits.  On 19 March 1962, the appropriate authority approved this request and on 22 March 1962, he was discharged accordingly.

The separation document (DD Form 214), issued to the applicant on 22 March 1962, confirms that his date of birth is 27 December 1919, which made him 42 years old on the date of his discharge.  It also verifies that he held the rank and pay grade of sergeant/E-5 (SGT/E-5) on the date of his separation from active duty and that he was discharged under the provisions of Army Regulation 
635-207, by reason of hardship, after completing a total of 15 years, 2 months, and 13 days of active military service.

In 1985, the applicant submitted an application for retired pay benefits (DA Form 108).  In connection with this request, a complete audit of the applicant’s record was conducted and resulted in a Chronological Record of Military Service (AGUZ Form 248) being prepared on 16 August 1985.  This document confirms that he had completed only 19 years, 2 months and 9 days of qualifying service for retired pay.  

On 10 September 1985, the applicant was advised in a letter from the Chief, Retirement Services Division, Retired Activities Directorate, Army Reserve Personnel Command (ARPERSCOM), that in order to be eligible for non-regular retired pay at age 60, a Reservist or former member must have completed a minimum of 20 qualifying years of service.  It also noted that service in the inactive Reserve was not creditable for retired pay purposes and that an audit of his military records had confirmed that he had completed only 19 years, 
2 months, and 9 days of service creditable for retirement.  Therefore, he was not eligible for non-regular retirement or retired pay at age 60.

In July 2000, the applicant submitted a second request for retired pay and benefits based on his military service.  He was again informed by a senior analyst of the Transition and Separations Branch, ARPERSCOM that an audit of his record of military service revealed that he had completed only 19 years, 
2 months, and 9 days of qualifying service for retired pay.  The applicant was further informed that he did not qualify for non-regular retirement under the provisions of Title 10, United States Code, section 1223 and that his only recourse at that point was to apply to this Board for a review of his case. 

Title 10, United States Code, section 1223 provides the legal authority and age and service requirements for entitlement to non-regular retired pay at age 60.  It states, in pertinent part, that in order to be eligible to receive non-regular retired pay a member must be at least 60 years of age; have performed at least 
20 years of qualifying service for retired pay, of which the last 8 must have been performed in an active Reserve component.  

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 Board notes the applicant’s contention that he should be granted qualifying service credit for non-regular retired pay for his Reserve service between 1946 and 1949, which would make him eligible to receive non-regular retired pay.  However, it finds insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was discharged from active duty by reason of hardship at his own request after he had completed a total of 15 years, 2 months, and 13 days of active military service.  There is no evidence that suggests he had any expectation of receiving non-regular retired pay at age 60 at the time he voluntarily requested and received this hardship discharge. 

3.  In addition, the record shows that all qualifying periods of service performed by the applicant between 14 January 1942 and 22 March 1962 were properly credited and accounted for in an AGUZ Form 249, dated 16 August 1985.  This document, prepared by ARPERSCOM officials subsequent to a complete audit of his military service record, confirmed that he had only completed 19 years, 
2 months, and 9 days of qualifying service for retired pay.  It further verified that he had not completed any qualifying service for retired pay subsequent to the date of his separation from active duty. 

4.  Further, there is no evidence of record or independent evidence provided by the applicant that gives any indication that he ever attempted to determine if he was eligible for non-regular retired pay at age 60 prior to his discharge from active duty or at anytime prior to applying for retied pay in 1985.  In addition, there is no suggestion that he ever attempted to take action to complete the necessary qualifying service for non-regular retired pay during the 17 year period between his discharge and the time he reached age 60 in 1979.  

5.  While the Board notes and congratulates the applicant on his outstanding record of service, it is compelled to deny the requested relief.  The Board finds insufficient evidence to show that his being denied non-regular retired pay was the result of an error in his military record or that it served an injustice upon him by denying him a benefit to which he had a reasonable entitlement expectation at the time of his separation from military service. 

6.  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

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2001062252	
SUFFIX		
RECON		
DATE BOARDED	2001/11/01	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1962/03/22	
DISCHARGE AUTHORITY	AR 635-207	
DISCHARGE REASON	Hardship 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  303	129.0100	
2.		
3.		
4.		
5.		
6.