MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             25 May 2000                  
	DOCKET NUMBER:    AR1999031593

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. Kenneth L. Wright		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 his records be corrected to show that he served 20 qualifying years of service for retired pay and was eligible for retired pay at age 60.

APPLICANT STATES:  After serving on active duty as a commissioned officer in WW II he served as a reserve officer assigned to a troop program unit, with full intentions to complete his career in the USAR and qualify for retired pay at age 60.  Unfortunately, he was in an automobile accident caused by a drunk driver who smashed into the rear of the car in which he was a passenger.  The impact of that collision resulted in the death of the driver and would have resulted in his death if it weren’t for a heroic individual who pulled him out of the burning vehicle. As a result of that accident, he was forced into choosing between being discharged and being transferred to the Retired Reserve.  He chose the Retired Reserve.  He was later returned to an active status in a reserve unit and completed a total of 23 years of service, but the Army Reserve Personnel Command will not recognize many of his years of service and, therefore, has denied him retired pay even though he is only missing 11 days to qualify for that pension.

EVIDENCE OF RECORD:  The applicant’s military records contains evidence to support his active duty during WWII and his USAR service.  However, his records do not contain any records pertaining to his transfer to the Retired Reserve, his reinstatement to an active status, and his second transfer to the Retired Reserve.

On 5 January 1968 a letter was sent to the applicant by the Adjutant General.  In that letter the applicant was informed that since he had reached maximum years of service for a lieutenant colonel, he had to be removed from an active status unless he had over 18 but less than 20 years of qualifying service, which he was told he did not have, or unless he had served continuously in an active reserve status since 3 September 1954, which he was told that he had not done, and could achieve 20 qualifying years of service prior to reaching age 60, which he was told was not possible.

In a USAAC Form 249, Statement of Service, it is shown that the applicant was inducted on 14 December 1942 and was commissioned on 16 July 1943 at the age of 32.  He remained on active duty until 30 June 1949.  He then served as a Reserve officer not on extended active duty and was promoted to lieutenant colonel.  Other than the 6 years of creditable service (complete years of service) he earned while on active duty, only the Retirement Years Ending (RYE) 23 November 1955, 29 September 1957, and 30 September 1960 through 30 September 1966 were creditable for retired pay.  He did not earn 50 retirement points in any of his other years.  As such, he had a total of 15 years of creditable service for retired pay at age 60.

Army Regulation 140-10, Assignments, Attachments, Details, and Transfers, paragraph 7-2, requires the removal of officers in the rank of lieutenant colonel and below 30 days after their 53rd birthday if age 25 or older at initial appointment.  Paragraph 7-12 of this regulation mandates that officers who have 18 years of qualifying service will be retained to complete 20 years of service (commonly known as an “18-year lockin”).

Army Regulation 140-1, Army Reserve Mission, Organization, and Training, prescribes the types of assignments and training for which a Reservist may be awarded retirement points.  These include proper unit assignment or attachment, proper pay category, participation in training assemblies which are properly scheduled by the unit, participation in types of training assemblies that are authorized by Army Regulations, and correspondence courses.

Title 10, United States Code, sections 1331 to 1337, provides that a Reserve soldier or former Reserve soldier must have completed a minimum of 20 years of qualifying service (a qualifying year is one in which at least 50 retirement points are earned) in order to be eligible for retired pay at age 60.
 
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.  Contrary to the applicant’s contention, he is lacking 5 years of creditable service to qualify for retired pay, not 11 days.

2.  When the applicant reached his maximum years of service, he was required to be removed from an active status.  He did not meet the various criteria for retention beyond his mandatory removal date.

3.  While the Board empathizes with the applicant’s desire to collect retired pay, the law is specific in what is required to qualify for retired pay.  The applicant did not meet those qualifications.  

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

__eja____  _ewl____  ___klw __  DENY APPLICATION

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

INDEX

CASE ID	AR1999031593	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000525	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	135.02	
2.		
3.		
4.		
5.		
6.