IN THE CASE OF: BOARD DATE: 8 December 2015 DOCKET NUMBER: AR20150005346 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of his previous request for correction of his records to show he was entitled to a nonregular retirement at age 60. 2. The applicant states, in effect, he is providing a new argument that was not previously considered. 3. The applicant provides: * two letters, dated 19 September 2006 and 4 March 2015 * one page of Title 10 U.S. Code (10 USC) * two pages of Army Regulation (AR) 140-10 * two pages of AR 140-1 * two pages of AR 135-178 * two pages of DODI 1336.07 (Reporting of Personnel Tempo (PERSTEMPO) Events) * a page titled Returning to Active Duty? You Must Let the Department of Veterans Affairs (VA) Know CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140011308, on 3 March 2015. 2. As a new argument, the applicant states: a. An issue of propriety involves whether or not the Army properly followed its own rules and regulations for his discharge. His total time in the service was 38 years and 17 days. He had 25 years, 4 months, and 28 days in an active status and 12 years, 7 months, and 29 days in a retired status. Mr. SHW was wrong to advise him of his privileges of using military posts and his standby status on military flights overseas as was the VA. b. 10 USC, section 10141(b), states members in the Retired Reserve are in a retired status. All other Reserves are in an active status. c. AR 140-10 (Army Reserve - Assignments, Attachments, Details, and Transfers), chapter 7 (Removal from Active Status), paragraph 7-1a, states “These provisions apply to Soldiers assigned to the Selected Reserve, Individual Ready Reserve (IRR), and the Standby Reserve (Active), etc.” d. AR 140-1 (Army Reserve - Mission, Organization, and Training),chapter 3 (Training), table 3-2 (Authorized Reserve, Training, and Retirement Categories), Training/Retirement Category 6 - (Not drawing retired pay and not eligible at age 60, Honorary Retirees), Remarks states “Members who are not eligible for retired pay, but who have requested placement on the Honorary Retired List under 10 USC, section 274 and Department of Defense Instruction (DODI) 1200.15, dated 16 February 1973.” e. AR 135-178 (ARNG and Army Reserve - Enlisted Administrative Separations), chapter 15 (Separation for Other Reasons), paragraph 15-1c (Attainment of Maximum Allowable Age) states “A Soldier who attains age as set forth in AR 140-10 (paragraph 7-1), as appropriate, unless granted a waiver will be discharged or, if eligible and the Soldier applies, be transferred to the Retired Reserve. The discharge will be effective the last day of the month (June) in which the Soldier attains age 60 (2005)." 3. The applicant was born 5 June 1945. His records show he was inducted into the Army of the United States on 22 November 1966. He was honorably released from active duty on 21 November 1968 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training). He completed 2 years of creditable active service. 4. Letter Orders Number 10-1435475, dated 18 October 1972, issued by the USAR Components Personnel and Administration Center, honorably discharged him from the USAR effective 21 November 1972. 5. On 9 October 1974, he enlisted in the USAR Ready Reserve. On 31 January 1980, he was honorably discharged from the USAR Ready Reserve. 6. On 22 August 1980, he enlisted in the USAR Ready Reserve. 7. In a memorandum to the applicant, dated 9 June 1994, from the USAR Personnel Center, he was advised that his expiration of term of service (ETS) had expired on 10 January 1993. It stated, in part, records indicated he had accumulated a substantial number of years of service. Under Army regulations, he had the option of selecting either a transfer to the Retired Reserve or a discharge. The bottom of the memorandum shows the applicant elected transfer to the Retired Reserve (if eligible). 8. Orders C-09-440250, dated 19 September 1994, issued by the U.S. Army Reserve Personnel Center, released him from the USAR Control Group (Reinforcement) and assigned him to the Retired Reserve effective 19 September 1994. These orders stated the reason was completion of 20 or more years of Reserve duty. 9. With his initial request, he provided a Chronological Statement of Retirement Points, dated 18 November 1997, wherein it showed he was credited with 17 years of qualifying service for nonregular retirement from 22 November 1966 through 21 August 1994. 10. His record is void of any evidence that shows he was issued a 20 Year Letter (Notification of Eligibility for Retired Pay at Age 60). He turned 60 years of age on 5 June 2005. 11. He provides a letter, dated 19 September 2006, wherein Mr. SHW, Supervisor, Retirement and Annuities, U.S. Army Human Resources Command (HRC) advised him, in part: a. The law and Army regulations required all Solders to be either retired or discharged at age 60. Retirement at age 60 required that the Soldier had accumulated a minimum of 20 qualifying years before the 60th birthday. His application for retirement was denied because he had only accumulated 17 qualifying years out of over 25 years served (emphasis added). b. He was previously advised that his ETS expired and he could elect discharge or transfer to the Retired Reserve; he chose the Retired Reserve. That option permitted him to continue to use the privileges of any military post as well as standby status on military flights overseas. Such status is valid until the Soldier attains age 60. At that time, the Soldier must either be placed on the Retired List of the Army or discharged. As he did not met the requirement for retirement, he had been discharged and no longer had post and other military privileges. 12. Orders D-05-711027, dated 18 May 2007, issued by HRC, discharged him from the USAR Retired Reserve effective 17 May 2007. 13. AR 135-180 (ARNG and USAR Qualifying Service for Retired Pay Nonregular Service), in effect at the time, stated in order to be eligible for retired pay, an individual did not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and (3) served the last 8 years of his/her qualifying service as an RC Soldier. The requirement to serve the last 8 years in an RC status has since been amended to the last 6 years and currently it is 0 years. A qualifying year of service for nonregular retired pay is a full year during which a Reserve member is credited with a minimum of 50 retirement points. A 20-Year letter would be issued to RC Soldiers within 1 year after they had completed 20 years of qualifying service for retirement. 14. 10 USC, section 10141(b), states Reserves who are on the inactive status list of an RC or who are assigned to the inactive Army National Guard (ARNG) are in an inactive status. Members in the Retired Reserve are in a retired status. All other Reserves are in an active status. Section 10153, states while in an inactive status, a Reserve is not eligible for pay or promotion and does not accrue credit for years of service under chapter 1223 of this title. Section 10154, states the Retired Reserve consists of (1) Reserves who are or have been retired, and (2) Reserves who have been transferred to the Retired Reserves, retain their status as Reserves, and are otherwise qualified. DISCUSSION AND CONCLUSIONS: 1. By law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for nonregular retired pay. A qualifying year of service for nonregular retired pay is a full year during which a Reserve member is credited with a minimum of 50 retirement points. 2. The evidence of record shows the applicant was advised in June 1994 that his ETS had expired and he had the option of selecting either a transfer to the Retired Reserve or a discharge. He elected transfer to the Retired Reserve and he was transferred to the Retired Reserve on 18 September 1994. 3. Although he had over 20 years of Reserve service, he only had 17 years of qualifying service for a nonregular retirement as of 21 August 1994. As he did not complete 20 qualifying years, he does not meet the eligibility criteria for a nonregular retirement at age 60. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20140011308, dated 3 March 2015. _______ _ _X______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150005346 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005346 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1