MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           24 JULY 2003                   
	DOCKET NUMBER:   AR2003084151

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Yolanda Maldonado		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, retirement pay at age 60 based on 15 years of nonregular service. 
  
APPLICANT STATES:  At the time of his separation from the Army Reserve in 1995, he had over 18 years of qualifying service for retired pay at age 60.  He submits a copy of his chronological statement of retirement points, a copy of the order discharging him from the Army Reserve, a copy of an authorization for a warrant officer to act upon his behalf, and a copy of a legal opinion from the Total Army Personnel Command Judge Advocate.   

EVIDENCE OF RECORD:  Incorporated herein by reference are military records which were summarized in a memorandum, dated 26 March 1997, prepared to reflect the Board's  consideration of his request to be granted a waiver of his medical condition so that he could remain in the Army Reserve and complete    20 years of qualifying service (AC96-09815).

The applicant had 18 years, 7 months, and 13 days of qualifying service for retired pay at age 60 when he was transferred to the Retired Reserve effective on 5 September 1995 because he was medically unfit for retention.

On 7 August 2002 the Total Army Personnel Command Judge Advocate provide a legal opinion to the warrant officer who was acting upon the applicant's behalf.  The applicant is aware of this opinion.  The Command Judge Advocate stated that the governing authority, 10 U.S.C., 12731b, which was effective on               5 October 1999, did not apply to the applicant, because he is not a member of the Selected Reserve, and the provisions of that section is not retroactive.  That officer also stated that the Secretary of the Army had not implemented 12731b in any regulation. 

10 U.S.C., 12731b is a special rule for members with physical disabilities not incurred in line of duty, and states in effect, that in the case of a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary may, determine to treat the member as having met the necessary service requirements for retirement at age 60, if the member has completed at least 15, and less than 20, years of qualifying service for retired pay.  12731b was added 5 October 1999 by Public Law 106-65.

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 is not entitled to retirement pay at age 60 under the provisions of 10 U.S.C. 12731b.  He was transferred to the Retired Reserve in 1995 prior to the enactment of the applicable rule.   
2.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

3.  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 that requirement.

4.  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__  __JPI ___  __YM ___  DENY APPLICATION

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

INDEX

CASE ID	AR2003084151	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030724	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	136.00	
2.		
3.		
4.		
5.		
6.