MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:           28 October 2003                   
		DOCKET NUMBER:  AR2003089199

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Linda D. Simmons		Member	
	Ms. Marla J. Troup		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 nonregular retirement.

APPLICANT STATES:  That he completed over 25 years of service for longevity pay of which 21 years, 9 months, and 19 days are qualifying service for retirement.  He was recently informed that he was not entitled to retired pay due to the law requiring a reservist to complete the last 8 years of qualifying service in a Reserve component.  He would surely have completed this requirement if someone had told him of the requirement when he was able to serve.  He provides no supporting evidence.

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

That he was born on 10 April 1930.  After having had prior service in various components of the Armed Forces (and serving in the Regular Army from October 1965 – November 1975), he enlisted in the Army National Guard on 21 August 1976.  He transferred to the U. S. Army Reserve sometime during retirement year ending 20 August 1979.

On 1 February 1980, a 5AA Form 333 (Eligibility for Retired Pay Worksheet) was prepared by an unknown agency.  The form indicated that a Reservist must have completed a minimum of 20 years of qualifying service and have served the last 8 years of qualifying service as a member of a Reserve component to be eligible for retired pay at age 60.

The applicant separated from the U. S. Army Reserve on 20 April 1980.  He reenlisted in the Oklahoma Army National Guard on 1 July 1981.  He moved      to Louisiana and on 12 December 1982 requested discharge from the Army National Guard as he could no longer attend drills with his Oklahoma unit.  Effective 29 March 1983, he was discharged from the Army National Guard    and assigned to the U. S. Army Reserve Control Group (Standby).  He was discharged from the U. S. Army Reserve on 1 December 1983 apparently by reason of expiration of his term of service.  

Around February 1987, the applicant attempted to reenlist in the Army National Guard.  After some initial checking, the enlistment sergeant informed him that it looked like he was already retired.  The applicant then inquired about his eligibility for retired pay.  Retired Activities informed him by letter dated 21 April 1987 that although he was credited with 21 years, 9 months, and 19 days of qualifying service he did not meet the requirement of having served the last        8 years of his qualifying service in a Reserve component.

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.

Title 10, U. S. Code (sections 1331 through 1337 at the time) authorizes retired pay for Reserve component military service.  Under this law, a Reserve soldier is entitled to retired pay if the person: (1) is at least 60 years old; (2) has performed a minimum of 20 qualifying years of service; and (3) has performed the last         8 years of qualifying service while a member of a Reserve component.

In the processing of this case, an advisory opinion was obtained from the U. S. Army Reserve Personnel Command, Transition and Separations Branch, Retirements and Annuities Section.  That office recommended disapproval of the applicant's request and noted that his request was previously denied in 1987.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He responded that he had not received the advisory opinion.  The advisory opinion was provided to him again.  The applicant failed to respond with the new time frame given.

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.  The evidence of record shows it was noted in February 1980 that the applicant needed to serve his last 8 years of qualifying service in a Reserve component prior to being eligible to receive retired pay at age 60.  It cannot be determined for certain if he received the document providing this information.

3.  The evidence of record shows the applicant attempted in 1987 to reenlist in the Army National Guard.  In response to an inquiry from him, he was informed in April 1987 that he had not met the requirement of having served the last 8 years in a Reserve component and so was not eligible to receive retired pay.  It appears the applicant made no further attempt to reenlist in the Army National Guard.

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

__rjw___  __lds___  __mjt___  DENY APPLICATION

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

INDEX

CASE ID	AR2003089199	
SUFFIX		
RECON		
DATE BOARDED	20031028	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	136.04	
2.		
3.		
4.		
5.		
6.