MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 October 2002
	DOCKET NUMBER:   AR2002075779

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John T. Meixell		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:  In effect, that his records be corrected to show he served his last 8 years of qualifying service in a Reserve Component in order to qualify for retired pay at age 60.

APPLICANT STATES:  That he served 4 years in the U. S. Marine Corps and then 13 years in the Regular Army.  His plans were to retire from the Army but, due to a family emergency, he was forced to accept a discharge after 17 years of exemplary service.  Upon returning home in 1973, he joined the Louisiana Army National Guard (LAARNG) believing he could serve out the rest of the 20 years there.  In 1981, he applied for retirement and was told he had not spent enough consecutive years in the National Guard.  None of his superiors informed him of this rule.  Between the time of his application and its rejection he injured his back and was not physically able to reenlist.

EVIDENCE OF RECORD:  The applicant's military records from his service in the Army National Guard are not available.  Information contained herein was obtained from alternate sources.

The applicant was born on 30 November 1930.  He served in the LAARNG from February 1949 - March or May 1950.  He served in the U. S. Marine Corps from May 1950 - January 1954.  After a short break in service, he served in the Regular Army from January 1955 - June 1967 when he was discharged for dependency.  His ARNG Retirement Points History Statement shows he served in the ARNG from 9 October 1973 - 24 February 1975; had a short break in service; served again in the ARNG from 17 June 1975 - 16 June 1976; had a short break in service, and reenlisted in the LAARNG for a last time on 12 March 1977.  He was promoted to Staff Sergeant, E-6 on 19 May 1978.

By letter dated 17 September 1980, a summary of the applicant's service was forwarded to the State Adjutant General's Office to determine his eligibility for retired pay at age 60.  He and his commander signed this letter.

The applicant was discharged from the LAARNG and as a Reserve of the Army on 11 March 1981 upon his expiration term of service (ETS).  At that time he had a total of 22 years, 4 months, and 7 days of creditable service for retired pay.  The last 5 years, 4 months, and 16 days of his qualifying service were spent in a Reserve Component.

By letter dated 25 March 1982, another summary of the applicant's service was forwarded to the State Adjutant General's Office to determine his eligibility for retired pay at age 60.  He and his (former) commander signed this letter.

A Qualifying Service for Retired Pay worksheet dated 12 October 1982 prepared by the Louisiana State Adjutant General's Office indicated the applicant had a total of 23 years, 6 months, and 15 days of qualifying service; however, he did not have 8 years of Reserve service since his last Regular Army service and he would not be eligible for retirement until 11 March 1984.

At the time, sections 1331 through 1337 of Title 10, U.S. Code, authorized retired pay for Reserve Component military service.  Under this law, a Reserve soldier must complete a minimum of 20 qualifying years of service, the last 8 years of qualifying service performed while a member of a Reserve Component, to be eligible for retired pay at age 60.  The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits 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.  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.  As a noncommissioned officer, the applicant should have researched on his own what the requirements were to earn a Reserve retirement before he ETSd.  Nevertheless, even if his superiors had never informed him of the rule requiring  8 years of Reserve Component service before qualifying for a Reserve retirement, he should have realized when he signed the 17 September 1980 letter which in effect requested a determination if he was eligible for retired pay that there may have been some question about his eligibility.  A reasonably prudent individual would have waited until he received a response to the request for determination, even if it meant extending his ETS, until he received notification of eligibility.  The applicant failed to do this.  The determination was made in October 1982 that he was not eligible since his last 8 years of qualifying service had not been performed while in a Reserve Component and, unfortunately, by time he tried to reenlist he was no longer medically qualified to do so.

3.  Regrettably, 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__  __RWA__  __JTM__  DENY APPLICATION

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

INDEX

CASE ID	AR2002075779	
SUFFIX		
RECON		
DATE BOARDED	2002/10/10	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	136.04	
2.		
3.		
4.		
5.		
6.