MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:           19 June 2003                   
	DOCKET NUMBER:   AR2003083892

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Lana E. McGlynn		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 authorized a non-regular retirement and retired pay from the United States Army Reserve (USAR).

APPLICANT STATES:  In effect, that he believes that he is entitled to retirement and retired pay based on his 16 years, 6 months, and 20 days of active duty service, which included two tours of duty in the Republic of Vietnam (RVN).  He also states that he served in the USAR for seven years, but that USAR officials failed to maintain accurate service records.  He states his unit was disbanded, and that full time unit administrative personnel were so overloaded with work.  As a result, records were not properly maintained and he lost his retirement entitlement.  He states he has no evidence to support his request, and the USAR evidence that is available is inaccurate.  In support of his application, he submits a copy of his active duty separation document (DD Form 214).

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

On 8 March 1966, the applicant entered the Army for a period of 2 years.  On 
29 August 1983, he was honorably released from active duty (REFRAD), by reason of expiration term of service, in the rank and pay grade of staff sergeant/E-6 (SSG/E-6).  At the time of his REFRAD, he had  completed a total of 16 years, 6 months, and 20 days of active military service.

On 30 August 1983, he enlisted in the USAR.  Orders Number 26-14, dated 
27 May 1988, issued by Headquarters, 122nd united States Army Reserve Command (USARC), reassigned the applicant from his unit to the USAR Control Group, effective 27 May 1988, by reason of unsatisfactory participation.  

Orders Number D-04-530729, dated 4 April 1995, issued by the Army Reserve Personnel Command (ARPERSCOM), directed the applicant’s honorable discharge from the USAR, effective 4 April 1995. 

A review of the applicant’s Chronological Statement of Retirement Points shows that he was credited with the necessary 20 years of qualifying service for retirement at age 60.  However, he only earned four years of credit for USAR service between 1983 and 1986.  He did not earn sufficient qualifying retirement points for the years between 1987 and 1995.  

In the processing of this case an advisory opinion was obtained from the Retirement and Annuities Branch, ARPERSCOM.  It indicated that the applicant had completed 16 years of active duty service and 4 years of qualifying USAR service.  However, to qualify for retired pay at age 60 under Title 10 of the United States Code, section 1223, one must have completed the 8 eight years ( or 6 years depending on the law in effect at the time) of qualifying service for retired pay in the USAR.  In the applicant’s case, he had completed only four years of qualifying service in the USAR.  This opinion was forwarded to the applicant in order to provide him the opportunity to respond.  To date, he has failed to reply.  

Army Regulation 135-180 implements the statutory authority governing qualifying service for retired pay for non-regular service in the Reserve Components (RC).  Chapter 2 states, in pertinent part, that a member is eligible for retired pay when they have reached age 60 and have completed a minimum of 20 years of qualifying service, the last eight of which must have been served in a Reserve Component (RC).  

Title 10 United States Code, Section 12731, provides that a person who has completed a minimum of 20 years of qualifying service during the period beginning on 5 October 1994 and ending on 31 December 2001, the last six of which must served in the RC. 

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 meets the criteria to be eligible for retired pay for non-regular (USAR not on active duty) service.  However, it finds this claim lacks merit.  

2.  By law and regulation, in order to be eligible for non-regular retired pay at age 60, a member must have completed a minimum of 20 years of qualifying service for retired pay purposes, the last eight ( or six depending on the law in effect at the time) of which must have been served in a RC.  

3.  The evidence of records confirms the applicant was credited with qualifying service for retired pay purposes for 16 years of active duty service and 4 years of USAR service.  While he had completed the total number of years necessary to qualify for retired pay at age 60, at the time he was released from the USAR for non-participation, he had not completed the last 8 years of qualifying service in a RC.  Therefore, the Board concludes that the applicant does not meet the legal and regulatory criteria necessary to qualify for a non-regular retirement.  

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

JS____  __WDP___  __LEM_  DENY APPLICATION

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

INDEX

CASE ID	AR2003083892	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR 	
DISCHARGE REASON		
BOARD DECISION	 DENY	
REVIEW AUTHORITY		
ISSUES         1. 341	136.0300	
2.		
3.		
4.		
5.		
6.