PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:             24 October 2000                   
	DOCKET NUMBER:    AR1999029732

	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
	Mr. Edmund P. Mercanti	           Analyst

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson 		Chairperson
	Mr. John T. Meisell		Member
	Mr. Edwin S. Castle		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 that he be entitled to retired pay for non-regular service (U.S. Army Reserve (USAR)) retirement on the date he turned age 60.

3.  In 1977, as a USAR commissioned officer assigned to Rocky Mount Arsenal, Colorado, applicant stole high powered plastic explosives and attempted to sell them to terrorists.  His sales efforts were foiled because the alleged terrorists were undercover FBI agents.  As a result, the U.S. District Court of Colorado convicted applicant and sentenced him to confinement for 20 years and a fine of $44,000.

4.  To prevent applicant from vesting as an officer under the 20-year regular retirement system because his crimes compromised the security interests of the nation, the Secretary of the Army revised the pertinent Army regulation and authorized the release of reserve officers from active duty if they were convicted of a serious crime by a civilian court.  Based on that change, the Secretary of the Army released applicant from active duty on or about 9 February 1978, about 1 to 2 days prior to applicant’s eligibility for a regular 20-year retirement as an officer vested.  As a result, the Secretary denied applicant retired pay as an officer.  Although applicant had over 20 years of active Federal service, his termination by the Secretary left him just short of the 10 years required of service as an officer before he could retire as an officer.  Further, the Secretary exercised his authority to deny applicant regular retirement as an enlisted person.

5.  Applicant advises the Board how he unsuccessfully appealed the denial of his years of service retirement to this Board (see In the Case of Gregory Alberico, AC78-05293 (ABCMR 31 January 1979)) and how he unsuccessfully appealed this Board’s 1979 denial to the Tenth Circuit Court of Appeals, which denied relief. See U.S. v. Alberico, 604 F.2d 1315 (10th Cir. 1979).  Additionally, the 
U.S. Claims Court denied applicant’s efforts to obtain regular retirement.  Alberico v. U.S., 7 Cl. Ct. 165 (1984). 

6.  Applicant argues this Board, in 1979, denied his application to be retired for 20 years of active service, not for qualifying service as a reservist when he turned age 60.  He also argues that during his Federal Court appeal the Government represented he would be eligible for USAR retired pay at age 60.  Applicant argues the Army Reserve Personnel Command’s (AR-PERSCOM’s) denial of USAR retired pay violated the law.

7.  The Board’s 31 January 1979 denial of applicant’s request to set aside his involuntary release from active duty and grant him retirement in the grade of captain (COPY ATTACHED), outlines the facts and circumstances surrounding his civil conviction and his involuntary release from active duty.

8.  On 17 March 1999, AR-PERSCOM denied the applicant’s request for retired pay for non-regular service effective 9 January 1999, the day he reached age 60.   AR-PERSCOM cited this Board’s 1979 denial of the applicant’s request to be retired for years of service as the reason for its denial of the applicant’s request for retired pay for non-regular service.

9.  Title 10 USC, §12731(a)(4) states that for a person to be eligible for retired pay for non-regular service a person cannot be “ . . . entitled, under any other provision of law, to retired pay from an armed force . . .”

10.  Title 10 USC, §12771 states that a Reserve officer who is transferred to the Retired Reserve is entitled to be placed on the Retired List at the highest grade the officer served satisfactorily.

CONCLUSIONS:

1.  Applicant is correct in his argument that he is entitled to USAR retirement at age 60.  AR-PERSCOM’s 17 March 1999 denial letter to applicant misinterpreted the Board’s 1979 decision.  That decision dealt with whether the Secretary properly amended AR 635-100 to authorize applicant’s immediate termination from active duty following his civilian conviction for a criminal crime, without notice, a board process, and the opportunity to submit matters on his behalf.  The Board upheld the Secretary’s authority and denied applicant the opportunity to receive retirement beginning immediately upon his departure from active duty.

a.  AR-PERSCOM’s denial imputed to the Board a position that not even the Secretary adopted.  In implementing the amendment to AR 635-100, the Secretary understood the DCSPER’s position that applicant’s eligibility for retirement at age 60 under the 10 U.S.C. §12731 et. al, Chapter 1223, was not implicated.  Thus, it was clearly not the Secretary’s intent to impact on applicant’s eligibility for Reserve retirement by amending the active duty retirement section of AR 635-100.  Consequently, the ABCMR’s January 1979 opinion could not have addressed more than the Secretary intended, and the AR-PERSCOM cannot validly ascribe more to the Board’s decision than it intended.

b.  The Government’s 1983 argument to the Claims Court and that court’s pronouncement that applicant is entitled to retirement pay at age 60 is eminently correct.  He served for 20 years in a dual capacity, as both an active duty soldier and reservist.  Upon his 20th year of service, applicant’s entitlement to retirement pay vested, and he could draw the retirement at age 60.  This vesting occurred prior to his conviction of his crimes for which he has already been punished.  Further, the Secretary’s approval of the DCSPER’s 1979 recommendation resulted in the Secretary’s determination applicant was ineligible for regular retirement as an enlisted person and ineligible for regular retirement as an officer.  Consequently, now that applicant is over 60, he is entitled to retirement under the authority of Title 10 U.S.C. § 12731.  

2.  The Board is satisfied that applicant meets the requirements for retirement at age 60. 

a.  A soldier is entitled to retired pay at age 60 if he or she has completed 20 qualifying years of service, if the soldier has served the last 8 years in a Reserve component, and if the soldier is not eligible for retired pay under any other provision of law. 

b.  Applicant indisputably has over 20 years of qualifying service, as evidenced by his DD Form 214. 

c.  Since applicant was a Reserve commissioned officer for over 10 years and to the end of his service, he satisfies the requirement to serve the last 8 years in a Reserve component. 

d.  The last requirement, that the soldier not be eligible for retired pay under any other provision of law, is also met since applicant was ineligible for regular retirement.  The Secretary withheld his regular retirement as an enlisted man.  Additionally, applicant lacked the 10 years of commissioned service that was a prerequisite to an officer’s regular retirement.  Therefore, applicant was and is not entitled to retired pay under any other provision of law.

3.  While applicant is entitled to be placed on the Retired List and collect retired pay, the Board expresses no opinion as to applicant’s retirement grade or rank for retirement pay purposes, since any initial decision in that area probably lies within the jurisdiction of the Army Grade Determination Review Board, and the Board may serve as its appellate authority.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by: 

	a.  showing that the individual concerned is entitled to retired pay for non-regular service in accordance with Title 10 U.S.C. §12731 et. al, Chapter 1223;

	b.  placing him on the Retired List effective the day he attained age 60; and,

	c.  paying to him his retired pay retroactive to the day he attained age 60, subject to any determination by the Army regarding applicant’s retirement grade or rank.

2.  The Board denies the remainder of the application in excess of the foregoing.

3.  The Board’s grant of relief in this case is non-discretionary and is required by law.

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:                              
	DOCKET NUMBER:   AR

	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
	M .		Analyst

  The following members, a quorum, were present:

	Mr. 		Chairperson
	Mr. 		Member
	Mr. 		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 that he be entitled to retired pay for non-regular service (USAR retirement) on the date he turned age 60.

3.  The applicant relates how he was on active duty as a USAR commissioned officer (captain serving on extended active duty as a computer systems software and analysis officer) when he was convicted of six felony counts involving theft of government property and mail matters.  As a result of that conviction the Army regulation which provided for the involuntary release of regular officers from active duty as a result of civil conviction was changed by the Secretary of the Army to include reserve officers on active duty.  Based on that change he was involuntarily released from active duty on 9 February 1978 and denied retired pay, even though he had over 20 years of active federal service.  He then relates how he unsuccessfully appealed the denial of his years of service retirement to this Board, and how he unsuccessfully appealed this Board’s denial to Federal Court.  The applicant points out that this Board denied his application to be retired for 20 years of active service, not for qualifying service as a reservist.  He also points out that during his Federal Court appeal the Government stated that he would be eligible for USAR retired pay at age 60.  The applicant concludes that the Army Reserve Personnel Command’s (AR-PERSCOM’s) denial of USAR retired pay in his case was and is in violation of US Code.

4.  In support of his application the applicant submits copies of documents which show that on 13 December 1977 he was convicted of theft of three Government checks totaling in excess of $70,000.00, theft of a cash register, possession of two checks stolen from the US Mail of a total value exceeding $2,000.00, conspiracy to steal and to sell and theft of 375 pounds of military plastic explosives which he subsequently sold for $15,000.00.  He was sentenced to 20 years of confinement and given a fine of $44,000.00 for those convictions.  He also provides copies of documents which show that he requested to be retired in the highest grade he successfully held, pay grade E-6; which show how the Secretary of the Army personally amended Army Regulation 635-100 on 11 January 1978 to allow for his involuntary release from active duty; which show how this Board denied his request to retire for years of service; and which show that a Federal Court denied his appeal to be retired for years of service.  In the latter documents it is shown that the Federal Court believed that the applicant would be entitled to USAR retired pay at age 60.

5.  The applicant’s military records show that On 31 January 1979 the Board denied the applicant’s request to have his involuntary release from active duty set aside and his application for retirement in the grade of captain granted (COPY ATTACHED).  This decisional document outlines the facts and circumstances surrounding the applicant’s civil conviction and his involuntary release from active duty.

6.  On 17 March 1999 the AR-PERSCOM denied the applicant’s request for retired pay for non-regular service effective 9 January 1999, the day he reached age 60.  The AR-PERSCOM cited this Board’s denial of the applicant’s request to be retired for years of service as the reason for its denial of the applicant’s request for retired pay for non-regular service.

7.  Title 10 USC, §12731(a)(4) states that for a person to be eligible for retired pay for non-regular service a person cannot be “ . . . entitled, under any other provision of law, to retired pay from an armed force . . .”

8.  Title 10 USC, §12771 states that a Reserve officer who is transferred to the Retired Reserve is entitled to be placed on the Retired List at the highest grade the officer served satisfactorily.

CONCLUSIONS:

1.  While the wording of the conclusions of the Board’s 1979 decisional document could be misinterpreted to mean the applicant was not entitled to retired pay for both 20 years of active federal service and for non-regular service, that Board did not consider whether the applicant should receive retired pay at age 60 for non-regular service.  As such, the Board’s 1979 decisional document is not a bar to the applicant receiving retired pay for non-regular service.

2.  The statute governing retired pay for non-regular service is simple and clear.  A soldier is entitled to retired pay at age 60 if he or she has completed 20 qualifying years of service, if the soldier has served the last 8 years in a Reserve component, and if the soldier is not eligible for retired pay under any other provision of law.  The applicant indisputably has over 20 years of qualifying service, as evidenced by his DD Form 214.  Since the applicant was a Reserve commissioned officer for over 10 years, he satisfies the requirement to serve the last 8 years in a Reserve component.  The last requirement, that the soldier not be eligible for retired pay under any other provision of law, is also met since the applicant is an officer and did not have 10 years of commissioned service, a prerequisite for retired pay for 20 years of active federal service.  If the applicant had been allowed to enlist in the Regular Army prior to his being released from active duty, he would in fact be entitled to retired pay and would have received that pay from the date of his release from active duty.  But since he was not allowed to enlist, he was and is not entitled to retired pay under any other provision of law.

3.  While the applicant is entitled to be placed on the Retired List and collect retired pay, it would appear that he did not serve satisfactorily in the rank of captain.  Therefore, his retirement grade must be established by a Grade Determination Board prior to his placement on the Retired List.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by 

	a.  showing that the individual concerned is entitled to retired pay for non-regular service in accordance with Title 10 USC, §12731;

	b.  holding a grade determination board to establish the grade in which he will be placed on the Retired List;

	c.  placing him on the Retired List effective the day he attained age 60; and

	d.  paying to him his retired pay retroactive to the day he attained age 60.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

_esc____  __jtm____  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ___mkp__  GRANT FORMAL HEARING

________  ________  ______ __  DENY APPLICATION

		_________Margaret K. Patterson_
		        CHAIRPERSON

INDEX

CASE ID	AR1999029732	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001024	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.