MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  24 September 2002
	DOCKET NUMBER:  AR2002071149

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Kenneth W. Lapin		Member	
	Mr. Donald P. Hupman		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 his records be corrected to show that he has completed the required 20 qualifying years of service for retired pay at age 60.

APPLICANT STATES:  That he was involuntarily transferred from his Army Reserve unit to the Retired Reserve due to twice non-selection for promotion.  He believed that he had completed the required service but had not and was not advised of his options to complete the necessary service.  He submits his denied application for retired pay benefits and copies of Army National Guard (ARNG) records in support of his application.

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

The applicant was serving as a captain in the ARNG when he was notified on 3 June 1975, that he was considered but not selected for promotion to major.  On 15 January 1976, orders were issued which transferred the applicant to an Army Reserve unit effective 30 January 1976.

On 12 July 1976, the Reserve Components Personnel and Administration Center and the National Guard Bureau issued notifications to the applicant's previous ARNG headquarters that he had not been selected for promotion to major a second time and would be discharged within 90 days.  The notice from the National Guard Bureau specifically noted that his appointment as an officer must be terminated effective 3 August 1976.  One of the exceptions to mandatory separation included officers who had been credited with 18 or more years of qualifying service for retirement.  Officers in this category would be given an opportunity to achieve 20 qualifying years of service.

An unauthenticated Fifth Army Form, Eligibility for Retired Pay Worksheet, dated 31 May 1977, shows that the applicant had 17 years of qualifying service for retired pay as of 25 May 1976 and 18 years of qualifying service for retired pay as of 25 May 1977.

On 19 September 1977, the applicant signed his election of options to be transferred to the Retired Reserve and sent it to Fifth Army for processing.  In his request he acknowledged that he was not automatically entitled to retired pay unless otherwise entitled by law.  There is no documentation in the available record to show when he was provided his election of options or when it was required to be returned.

On 13 December 1977, orders were issued which transferred the applicant to the Retired Reserve effective 3 August 1977.  On 15 May 1978, the Wisconsin ARNG provided Fifth Army with the applicant's qualifying service.  They computed his qualifying ARNG service as 17 years, 2 months, and 20 days as of 31 January 1976, the date of his transfer to the Army Reserve.
In a 15 May 1978 response to a Member of Congress, Fifth Army noted that the applicant's creditable service for retired pay as of 3 August 1976 was 17 years, 8 months, and 22 days.  They also noted that he entered the service on 26 May 1958 and that he had over 5 months of service that was not creditable for retirement.  Additionally, Fifth Army explained that retirement points obtained after the date a member should have been removed are not creditable even though the actual date of removal is effective at a later date.  The Member of Congress was informed that the applicant could apply to this Board if he felt there was an error or injustice.  There is no evidence that he ever applied for relief prior to this current application.

On 9 January 2002, the Army Reserve Personnel Command responded to the applicant's application for retired pay.  The response notes that an audit of his records had been conducted and that he had only 18 years of qualifying service for retired pay.  His request was denied.

Title 10, U.S. Code, section 12646, provides for the retention of Reserve Component officers.  The law provides that if an officer has 18 or more years but less than 20 years of qualifying service on the date prescribed for his discharge he will, with his consent, be retained until the date he is credited with 20 years of qualifying service or not later than the third anniversary of the date on which he would have been discharged.

Army Regulation 135-155, in effect at the time, provided the policy for Reserve Component officer promotion and non-selection for promotion procedures.  Paragraph 4-30 provided for the removal from an active status of officers who twice fail to be selected for promotion to major within 90 days after the selection board submits its results to the Department of the Army.

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 applicant entered military service on 26 May 1958 and was transferred to the Retired Reserve effective 3 August 1977.  It is not credible for him to believe that he completed the required 20 years of qualifying service with 19 years and 3 months total service.

2.  The 12 July 1976 notification from the National Guard Bureau notes that his officer appointment must be terminated effective 3 August 1976.  The applicant did not complete 18 years of qualifying service for retirement and thus retention until 25 May 1977, 9 months after his required separation date.

3.  The applicant's removal from an active status was required under operation of law and regulation.  There is no error or injustice.  The applicant was authorized and requested transfer to the Retired Reserve without entitlement to retired pay at age 60.

4.  The applicant's Member of Congress was informed in May 1978, that the applicant was not qualified for retired pay at age 60 and why he was not qualified.  There has been no new information presented since that date.

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

__ao____  __kl____  ___dh_____  DENY APPLICATION

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

INDEX

CASE ID	AR2002071149	
SUFFIX		
RECON		
DATE BOARDED	20020924	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.