MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:      

		BOARD DATE:           9 October 2003
		DOCKET NUMBER:  AR2003089049

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Robert J. Osborn		Member	
	Ms. Eloise C. Prendergast		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:  That he be granted a United States Army Reserve (USAR) Retirement at age 60, for attaining 20 qualifying years of service.

APPLICANT STATES:  In effect, that he has over 20 years of active and Reserve service with the Army and Navy in both war and peace and was never told about the provision to serve the last 8 qualifying years of service in the Reserve Component.  He is now 60 years of age and finds that he cannot receive the pension he earned.

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

He was born on 14 February 1943 and after serving 6 years, 9 months and 3 days of active and 11 months and 8 days of inactive service in the United States Navy and Naval Reserve, he was honorably discharged on 17 February 1967.

He enlisted in the Regular Army on 7 October 1975 and served on active duty until he was honorably discharged in the pay grade of E-7 on 29 December 1985, due to the expiration of his term of service.

On 16 November 1987, he enlisted in the USAR and remained in the USAR through a series of continuous extensions and reenlistments.  

On 21 July 1995, the applicant contacted officials at the Army Reserve Personnel Center (ARPERCEN) in St. Louis, Missouri, regarding reenlistment matters.  Officials at the ARPERCEN advised him at that time that he needed to join a troop program unit (TPU) in order to attain 4 more qualifying years of service to be eligible for retirement before his 60th birthday.

On 9 April 2001, the applicant submitted a request to the ARPERCEN requesting to be transferred to the Retired Reserve.  On 27 September 2001, his request was returned without action and he was informed that he had only 19 qualifying years of service for retirement purposes.  The applicant extended his enlistment until 28 February 2003, in order to allow him to attain 20 creditable years of service.

Meanwhile, on 15 November 2002, officials at the ARPERCEN informed the applicant that he would have to have 8 qualifying years in the USAR to be issued a 20-year letter.  The applicant turned 60 years of age on 14 February 2003.

In the processing of this case, the Army Reserve Personnel Command (ARPERSCOM), formerly ARPERCEN, provided the staff of the Board with a memorandum advising the Board that Non-Regular retirement at age 60 is authorized by Title 10, United States Code, section 1223, and that the statute requires that soldiers complete 20 qualifying years of service and that the last 6 years of qualifying service must be in the Reserve Component.  Those officials also opined that the applicant was made aware of the requirement in 1995 when he was advised to join a TPU to get an additional 4 years for retirement and again in 2001 when he submitted a request to be transferred to the Retired Reserve.  Additionally, the reverse (back) of previous editions of the Chronological Statement of Retirement Points stated the requirement for Reserve retirement.

The memorandum was provided to the applicant for comment and he responded to the effect that when he enlisted in the USAR, he was told that he only needed 5 years to qualify for retirement and that nothing was ever said about being in the USAR for the last 6 or 8 years.  When he applied in 2001 to be transferred to the Retired Reserve he was informed that he did not have 20 creditable years and that he needed to join a TPU.  Now after attaining 20 creditable years, he is being told that he is still not eligible because the last 6 or 8 years were not as a Reserve Component.  He also states that he has requested an exception to policy to do the extra year he needs and has received no answer as of this date.  He also states that he has earned his pension and believes that Army should do the right thing by granting it to him.

A review of the applicant's chronological statement of retirement points shows that since joining the USAR in 1987, the applicant only completed 5 creditable years of service for retirement purposes.  

Army Regulation 135-180 implements the statutory authority governing the granting of Retired pay to soldiers of the Reserve Components.  It states, in pertinent part, that to be eligible for Retired pay, a person must have attained age 60, have completed a minimum of 20 qualifying years of service and have served the last 8 years of his or her qualifying service as a Reserve Component soldier.  Service creditable as a qualifying year is one in which the Reservist is in an active status and earns a minimum of 50 qualifying points during the retirement year.

The Fiscal Year 2003 National Defense Authorization Act, section 631, amended Title 10, United States Code, section 12731 to permanently reduce requirement from last 8 years to last 6 years of qualifying service in Reserve Component to be eligible for non-regular Retired Pay.  Those who had performed at least 20 years of qualifying service before 5 October 1994, would still be required to have eight years.  Additionally, the effective date for the change was 1 October 2002, with the proviso that no benefit shall accrue to any person before that date by reason of the change. 

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.  While the Board is sympathetic to the applicant’s present situation, he has submitted no evidence to substantiate that he was incorrectly informed that he had sufficient service to qualify for retirement at age 60.  Accordingly, in the absence of evidence to show that an error or injustice occurred, the Board finds no basis to grant him an additional year of credit for service he did not perform. 

2.  It appears to the Board that the applicant had more than sufficient opportunity to acquire 6 creditable years of service for retirement over the past 15 years he has been in the USAR and he simply did not do so.  To grant him an additional year at this time would afford him a benefit that is not afforded to others in similar circumstances.

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 this 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

__ecp___  __rvo ___  ___rjo ___  DENY APPLICATION

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

INDEX

CASE ID	AR2003089049	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/10/09	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  334	135.0200/ret pt credit	
2.		
3.		
4.		
5.		
6.