MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            31 July 2003      
	DOCKET NUMBER:   AR2003085632

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Gail J. Wire		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. Robert Duecaster		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 issued a 20-year letter (notification of eligibility to receive retired pay at age 60).

APPLICANT STATES:  That he was unfairly denied retired pay and penalized because he had served as an officer in the Regular Army.  Because he had been awarded the Distinguished Military Graduate award upon graduation from the Reserve Officers' Training Program (ROTC), he entered active duty on 18 July 1963 as a U. S. Army Reserve (USAR) second lieutenant with his Regular Army commission pending.  He was promoted rapidly as the troop buildup for Vietnam progressed.  At his last transfer, he was requested by name by the Commanding General, U. S. Army Computer Systems Command for an assignment.  At the same time, the Army Chief of Staff requested him by name for a project at Fort Bragg, NC.  He was assigned to Fort Bragg.  At that point, the war had ended.  The Army was being downsized and even Regular Army officers were being affected.  He survived a reduction in force (RIF).  When that process did not reduce the officer force enough, the promotion system was used to reduce it further.  He was passed over for promotion twice and involuntarily separated.

The applicant states that since he had originally been in the USAR, he elected   to rejoin the USAR.  When he did so, he lost all his time in grade as a major    and had to start all over as if he were a newly-promoted major.  In 1998, he received his retirement packet.  Although his ARPC Form 249-2-E (Chronological Statement of Retirement Points) indicated that he had only 19.5 years of creditable service, he was told to fill out the forms anyway and, under final audit, he might have the required 20 years credit.  In September 1999, he was informed that his final audit showed he did in fact have 20 years of creditable service; however, to be eligible for retirement he must have 8 full years of creditable service in the USAR.  In other words, that he must have 23 years of creditable years of service.  Nowhere had he ever heard of any situation where 20 years of creditable service did not qualify for retirement.  He defies anyone to show him any form that he signed that states he would not be eligible for retirement benefits until he had completed 23 years of service.  

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

He was born on 24 October 1939.  He was commissioned in the USAR on        29 May 1963.  He entered active duty in the Regular Army on 18 July 1963. He was promoted to major on 25 February 1970.

By letter dated 2 September 1977, the applicant was notified that he had been twice not recommended for promotion and he would be involuntarily discharged no later than 1 March 1978 unless he requested an earlier release date.

By letter dated 30 December 1977, the applicant was appointed a Reserve commissioned officer of the Army.  Paragraph 7 of the letter informs the applicant, "Officers must complete 8 years of qualifying Reserve service for retirement purposes under the provisions of sections 1331 - 1337 Title 10, U. S. C. before mandatory removal date."  

An undated AGUZ Form 871 (Computation Sheet Basic Date (mandatory removal from active status under ROPA for max authorized years service)) shows the applicant would reach his mandatory removal from active status date on 28 May 1991.

On 24 January 1978, the applicant was discharged from the Regular Army.  His ARPC Form 249-2-E shows he entered the USAR the next day.  He was promoted to lieutenant colonel on an unknown date.

The applicant's ARPC Form 249-2-E shows that his retirement year ending (RYE) dates 28 May 1980, 28 May 1985, 28 May 1987, 28 May 1988, 28 May 1989, 28 May 1990, and 28 May 1991 were not qualifying years for a Reserve retirement (he earned less than 50 points per year).

Effective 1 November 1991, the applicant was reassigned to the Retired Reserve due to completion of maximum authorized years of service.

Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers.  In pertinent part, it states that, to be eligible for retired pay, an individual need not have a military status at the time of application but must have attained age 60, completed a minimum of 20 years of qualifying service, and have served the last 8 years of his or her qualifying service as a Reserve component soldier.

Title 10, U. S. Code, at the time sections 1331 - 1337 (currently sections     12731 – 12740), provides that a non-regular service member is entitled, upon application, to retired pay if the person is at least 60 years of age; has performed at least 20 years of qualifying service; and has performed the last 8 years of qualifying service while a member of a 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.  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.

2.  It is a statutory requirement that, in order to be eligible for a Reserve retirement, in addition to completing a minimum of 20 years of qualifying service a member must have served the last 8 years of his or her qualifying service as a Reserve component soldier.  The applicant was informed of this statutory requirement on his USAR appointment orders dated 30 December 1977.

3.  The applicant was a field grade commissioned officer.  It was his responsibility to inform himself what the guidance and requirements for earning a Reserve retirement outlined in paragraph 7 of his appointment orders entailed.  The Board therefore concludes that there is no injustice in not granting the applicant the relief requested.

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

__gjw___  __kah___  __rd____  DENY APPLICATION

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

INDEX

CASE ID	AR2003085632	
SUFFIX		
RECON		
DATE BOARDED	20030731	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	136.03	
2.		
3.		
4.		
5.		
6.