PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           30 October 2003                   
	DOCKET NUMBER:  AR2003086187

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis L. Greenway		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Mr. Larry C. Bergquist		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 he be credited with 20 qualifying years of service for a nonregular retirement and issued a notification of eligibility for retired pay at age 60 (a 20-year letter).

3.  The applicant states that his last year in the Regular Army should be credited as a full qualifying year.  The Army let him out early when he returned from Germany.   

4.  The applicant’s military records show that he was born on 26 August 1942.  He enlisted in the Regular Army on 28 September 1959.  He was released from active duty on 19 September 1962 after completing 2 years, 11 months, and     23 days of creditable active service.  His Retirement Points Summary Statement shows he earned 357 active duty points for retirement year ending (RYE)           19 September 1962.  He enlisted in the U. S. Army Reserve (USAR) on 15 June 1977.  He last reenlisted on 20 October 1991 for 6 years.

5.  The applicant enlisted in the USAR on 15 June 1977 and actively participated in the USAR.  His Retirement Points Summary Statement shows that he earned 34 active duty points and a total of 94 retirement points for RYE 14 June 1981.  He continued to actively participate until RYE date 14 June 1995, at which time he had completed 19 years, 11 months, and 23 days of qualifying service for a nonregular retirement.  A DA Form 4851-R (Request for Reserve Component Assignment or Attachment) dated 12 September 1994 shows the applicant requested assignment to the Retired Reserve.  It cannot be determined what action, if any, was taken on this request.  On 7 November 1995, the applicant apparently requested transfer to the USAR Control Group Reinforcement.  He was transferred to that Control Group effective 24 January 1996.  

6.  The applicant was honorably discharged from the USAR on 21 October 1997 upon the expiration of his term of service.  

7.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers.

8.  Sections 12731 through 12738 of Title 10, U.S. Code, 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.  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.

9.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized.  In pertinent part, it states that annual or terminal statements of retirement points (1) give a permanent record of the total retirement points a soldier earns during a retirement year; (2) tell the soldier whether he or she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status; and (3) give the soldier an opportunity to request correction of errors in the statement.

10.  Section 1176(b)(2) of Title 10, U. S. Code states that a reserve enlisted member serving in a active status who is selected to be involuntarily separated (other than for physical disability or for cause) or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause) and who on the date on which the member is to be discharged or transferred from an active status is entitled to be credited with at least 19, but less than 20, years of service, may not be discharged, denied reenlistment or transferred from an active status without his consent before the earlier of the date on which he is entitled to be credited with 20 years of qualifying service or the second anniversary of the date on which he would otherwise be discharged or transferred from an active status.

CONCLUSIONS:

1.  The applicant does not qualify for a nonregular retirement primarily because when he was in the Regular Army he was released from active duty 7 days before he would have completed a full 3 years of service. 

2.  The applicant should have been able to discover this fact by reviewing how many qualifying years he had as reflected on his annual statements of retirement points.  Nevertheless, it also appears that the applicant may have been improperly counseled concerning that final qualifying year at the time he requested assignment to the Retired Reserve and, later, the USAR Control Group Reinforcement.  It is not credible to believe he would have knowingly stopped his active participation in the USAR only 7 days shy of qualifying for a nonregular retirement.

3.  It would not be appropriate or equitable to correct the applicant's records to show he was separated from the Regular Army 7 days later.  However, it would be equitable to correct the applicant's records to redistribute some of the excess active duty retirement points he earned during RYE 14 June 1981 to RYE         19 September 1962.  

4.  A redistribution of 8 retirement points would show the applicant had 26 active duty retirement points and a total of 88 retirement points for RYE 14 June 1981, still sufficient to be a qualifying year for that RYE.  In addition, he would have  365 active duty retirement points for RYE 19 September 1962 and a total of    365 retirement points for that RYE, a full qualifying year.  Thus he would be eligible to be issued a 20-year letter and be entitled to retired pay at age 60.
5.  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 be corrected:

     a.  by correcting the applicant's Retirement Points Summary Statement for RYE 14 June 1981 to show he earned 26 active duty points and a total of           88 retirement points;

     b.  by correcting the applicant's Retirement Points Summary Statement for RYE 19 September 1962 to show he earned 365 active duty points and a total of 365 active duty points; and

     c.  by issuing to the applicant a certificate of eligibility to show he is entitled to Reserve retired benefits at age 60.

BOARD VOTE:  

__clg    _   ewl___  __lcb___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Curtis L. Greenway_
		        CHAIRPERSON

INDEX

CASE ID	AR2003086187	
SUFFIX		
RECON		
DATE BOARDED	20031030	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	136.04	
2.		
3.		
4.		
5.		
6.