PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           28 January 2003
	DOCKET NUMBER:   AR2002073357

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Tracey L. Pinson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                            records
	Exhibit B - Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his military records be corrected to show that he completed the 20 years of qualifying service necessary to receive retired pay at age 60. 

3.  The applicant states, in effect, that he volunteered for duty in his United States Army Reserve (USAR) unit in order to gain the points necessary to qualify for retired pay at age 60, but the points were never added to his record.  He states that he is being denied retirement pay because of a shortage of points that he had in fact earned.  He further states that he has submitted additional evidence of the additional retirement points he earned. 

4.  The applicant’s military records show that he entered in the Regular Army on 3 December 1958, and that he served on active duty until honorably discharged on 22 November 1960.  Upon his separation from active duty, he was  transferred to the USAR and continued to serve in that status until he was honorably discharged on 22 November 1964. 

5.  On 24 January 1978, after a 14 year break in service, the applicant enlisted in the USAR.  He continued to serve in the USAR until 12 August 1996, at which time he was assigned to the Retired Reserve based on reaching the mandatory age limit of 60.  His Summary Points Inquiry/Update, dated 2 July 2002, shows that he completed 19 years, 10 months, and 21 days of qualifying service for retirement purposes as of 12 August 1996.  This document also confirms that during his qualifying years of service he earned in excess of 65 points except during the Retirement Year Ending (RYE) date of 12 August 1996, which reflects 24 points.  There is no evidence that he was issued a Certificate for Retired Pay at Age 60 (20-Year Letter).  

6.  In the processing of this case an advisory opinion was provided by the Supervisor, Retirements and Annuities, Army Reserve Personnel Command (ARPERSCOM).  The advisory opinion stated that an adjustment to the applicant’s retirement history for 1996 was made based on additional evidence and that he was awarded two retirement points for each eight hour period totaling 24 retirement points all earned in the same year.  Army Regulation 140-85, Appendix B states that for a partial year of service involving 200 days of active service, the soldier must earn 28 retirement point for a qualifying year.  In addition, the 24 points awarded for retirement history for 1996 still disqualified him for retirement as twenty qualifying years of service are required.  The applicant was provided a copy of the advisory opinion for possible rebuttal.  To date, he has failed to respond.  

7.  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.

8.  Sections 12731 through 12739 of Title 10, USC, authorize retired pay for Reserve Component military service.  Under this law, a Reserve soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve soldier earned 50 retirement points or more.  This law further requires that the last 
8 years of qualifying service must be in a Reserve Component.  

9.  The term “good years” is an unofficial term used to mean years in which 
50 or more retirement points are earned during each year, and which count as qualifying years of service for retirement benefits at age 60.

10.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), indicates, in pertinent part, that to be eligible for retired pay an individual need not have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and, (3) served the last 8-years of his or her qualifying service as a Reserve Component soldier.

CONCLUSIONS:

1.  The evidence of record clearly shows that the applicant was transferred to the Retired Reserve effective 12 August 1996 after completing 19 years, 10 months, and 21 days of qualifying service.  The evidence of record also shows that the applicant failed to obtain sufficient points to be eligible for retirement as twenty years of qualifying of service are required by statutory guidance.  However, during all his qualifying years of service he earned in excess of 65 points per year.

2.  Notwithstanding that the applicant failed to achieve the qualifying service in a Reserve Component, the applicant has sufficient excess retirement points that can be redistributed to his unqualifying retirement year ending on 21 November 1961.  This redistribution would not involve awarding additional retirement points, entitlement to additional drill pay, or adding an additional period of service.

3.  In the opinion of the Board, It would now be in the interest of justice to redistribute the necessary excess retirement points to his retirement year ending on 12 August 1996, and showing that retirement year as qualifying for retirement.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected by:
 
	a.  redistributing the necessary excess retirement points from his prior retirement years to his retirement year ending on 12 August 1996, and showing the retirement year qualifies for retired pay;

	b.  allowing him to elect an option under the Survivor Benefit Plan;
 
	c.  by showing that he made timely application for retired pay; and
.
	d.  providing him retired pay effective the date of the approval of these Proceedings.

BOARD VOTE:  

__KAK__  __MHM  _  __TLP __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_   _Karol A. Kennedy_  __
		        CHAIRPERSON

INDEX

CASE ID	AR2002073357	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030128	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.