IN THE CASE OF: BOARD DATE: 12 January 2016 DOCKET NUMBER: AR20150006997 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 through his Member of Congress reconsideration of his earlier requests for entitlement to retired pay at age 60. 2. The applicant states his retirement points are in error despite multiple attempts to correct them. His chronological statement for retirement points shows qualifying years of service for years 1957, 1958, 1959, 1983, 1988, 1987, 1990, 1991, 1992, 1993, 1994, and 1995 for a total of 12 qualifying years of service. However, years 1988 and 1989 meet the requirements as evidenced by his Federal Income Tax W-2 forms. This evidence adds 2 more years of service. He was credited with 49 retirement points in retirement year 1985 and he only needs one more point from his Continuing Medical Education (CME) credits, medical license, cardiopulmonary resuscitation (CPR) certification, or similar training to total 50 retirement points. With these corrections he would have 15 years of service for non-regular retired pay. There is also another qualifying year earned but not credited. This would boost his years of qualifying service for non-regular retired pay to over 16 years. 3. In a letter to his Member of Congress, the applicant states he has been trying to correct his record for over 20 years. The previous Army Board for Correction of Military Records (ABCMR) reviewer recommended he receive retired pay even though his file did not include his Gulf War service. The additional information he now provides includes tax forms from the 1980s which should show more good years. He is 86 years of age and there isn't much retirement time left for him. He is not well and has legal and financial problems. 4. The applicant provides: * letter to his Member of Congress * 1987, 1988, and 1989 Form 1040 (U.S. Individual Income Tax Return) * 1987, 1988, 1989, and 1990 W-2 Forms * printout with hand-written entry "Active Duty Dates" * APRC 249-2-E (Chronological Statement of Retirement Points) * California CME Certificate * Advanced Trauma Life Support Card * previous application to the ABCMR CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's request by the ABCMR in Docket Number AR1999028792, on 27 June 2000 and AR2001061241, on 7 March 2002. 2. The applicant submitted a letter to his Member of Congress and W-2 forms which were not previously reviewed by the ABCMR. Although not received within 1 year of the Board's original decisions, they are considered new evidence, and as an exception to policy, warrant consideration by the Board. 3. The applicant was born on 11 April 1929. He turned 60 years of age on 11 April 1989. 4. He was appointed as a Reserve commissioned officer of the Army, Medical Corps, and executed an oath of office on 3 October 1956. He served as a U.S. Army Reserve (USAR) officer not on active duty through 16 February 1957. 5. He was called from Reserve status, appointed as a temporary captain in the Army of the United States, and entered active duty on 17 February 1957. He served with the 125th Medical Detachment, Korea. 6. He was honorably discharged from active duty on 16 February 1959 at the expiration of his active duty commitment. He completed 2 years of active service. He then worked in private medical practice from October 1966 to June 1982. 7. He was appointed as a Reserve commissioned officer of the Army, in the rank of major, and executed an oath of office on 10 November 1982. He served in a variety of positions within his troop program unit (TPU), the 6253rd U.S. Army Hospital, CA. He was promoted to lieutenant colonel (LTC) in November 1985. 8. He was considered for promotion to colonel by multiple Reserve Component Selection Boards from 1989 to 1995 but in each year, he was not selected for promotion. 9. On 20 September 1995, by letter, the Commander, 6253rd U.S. Army Hospital notified the applicant that the hospital was tasked to downsize by 1 October 1995. As such, many positions would be eliminated and Soldiers would be released from the unit. He was identified as eligible for the Selective Reserve Transition Benefit Program (SRTBP). 10. The SRTBP was established in response to a required post-Cold War force drawdown and the requirement to fairly and equitably compensate Reserve Component Soldiers for their military service. Affected were any Selected Reserve personnel who lost their paid drill positions due to inactivation, relocation or reorganization of their units during the drawdown period (1 October 1991-30 September 1999). Special benefits included separation pay and early qualification for retired pay at age 60 wherein members with at least 15, but less than 20 years of qualifying service could elect to transfer to the Retired Reserve, and those with at least 6, but less than 15 years of qualifying service could receive separation pay. 11. On 16 October 1995, he submitted a DA Form 4187 (Personnel Action) wherein he stated that he had completed an unknown number of years of qualifying service and that due to inactivation or reorganization of his unit, he must be reassigned. Since an assignment to another unit was not available, he elected early qualification for retired pay and transfer to the Retired Reserve. 12. On 8 April 1997, he submitted a DD Form 108 (Application for Retired Pay Benefits). He listed his service from March 1956 to September 1997 and indicated he earned 1,584 retirement points. 13. Also on 8 April 1997, the USA Personnel Center, now known as the U.S. Army Human Resources Command (HRC), St. Louis, published Orders C-04-713886, releasing him from the USAR and transferring him to the Retired Reserve effective 8 April 1997 by reason of maximum age. 14. On 10 September 1998, Headquarters, 63rd Regional Support Command, Los Alamitos, CA published Orders 253-13 reassigning him to the Retired Reserve by reason of "unit inactivation (early retirement: 15 to 20 years)" effective 16 October 1996. 15. On 26 June 1998, by letter, HRC St. Louis informed him that by law, to be eligible for retired pay at age 60, he must have completed 20 qualifying years of service, the last 8 years of which must have been in the Reserve Component. An audit of his records indicated he had completed 10 years of qualifying service for non-regular retired pay. He was ineligible to receive retired pay. 16. On 10 July 1998, he responded to HRC and stated that on 16 October 1995, he opted for early retirement when the Army underwent a reduction in force, since he had the required 15 years of service. He was placed in the Retired Reserve on 8 April 1997 and applied for retired pay in December 1997. He received a denial letter from HRC and he wanted this error corrected. 17. On 28 July 1998, HRC responded to his inquiry and explained that he was placed in the Retired Reserve because he had reached maximum age permitted by law, but he still did not qualify for retired pay because he did not have 20 qualifying years of service. This requirement is found in Title 10, U.S. Code, sections 12731 through 12737. 18. On 27 June 2000, following his petition to the Board (ABCMR Docket Number AR1999028792), in a three to zero decision, the Board voted to deny his application to receive retired pay. After reviewing the findings, conclusions, and recommendations contained in the proceedings, the Deputy Assistant Secretary of the Army (DASA) Review Boards (RB) denied his request for retired pay. The DASA (RB) determined that as an officer in the USAR, the applicant should have known that he did not have 15 years of qualifying service for early retirement. He had been provided a retirement point statement each year by the USAR Command showing the number of retirement points earned and years of qualifying service for non-regular retirement. 19. On 7 March 2002, following his petition to the Board for reconsideration (ABCMR Docket Number 201061241), the Board acknowledged that he may have been led to believe he qualified for early retirement and elected to transfer to the Retired Reserve by his TPU commander during the drawdown of forces. However, the fact remained he did not have 15 qualifying years of service and by law, he could not receive retired pay. However, as a matter of fairness and equity, the Board determined it would be appropriate to change his SRTBP election from 15-year retirement to separation with separation pay for his 12 years of service as of 16 October 1996, the date he was discharged from his TPU unit. 20. On 2 July 2002, as a result of the Board's decision, Headquarters, 63rd Regional Support Command, published orders revoking Orders 253-13, dated 10 September 1998, transferring him to the Retired Reserve. 21. On 1 August 2002, Headquarters, USAR Command, Fort McPherson, GA, published Orders 02-213-00004 honorably discharging him from the USAR effective 16 October 1996. 22. His most recent ARPC Form 249-E shows he earned 1,585 retirement points and has 11 qualifying years of service. 23. He provided his 1987, 1988, and 1989 tax forms together with his 1987, 1988, 1989, and 1990 W-2 Forms, a printout with hand-written entry "Active Duty Dates," his California CME Certificate, and Advanced Trauma Life Support Card. 24. Title 10, U.S. Code, sections 1331 through 1337 (now section 12731 through 12733) authorize retired pay for Reserve Component (RC) military service. Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60. 25. Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former RC Soldiers. In order to be eligible for retired pay an individual does not need to have a military status at the time of application for retired pay, but must have attained age 60 and completed a minimum of 20 years of qualifying service. This regulation also specifies that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be issued a written notification known as the 20-year letter within 1 year after he/she completes 20 years of service. 26. Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department (AMEDD) Branches) prescribes policy, procedures, and eligibility criteria for appointment in the RC of the Army, in the six branches of the AMEDD. DISCUSSION AND CONCLUSIONS: 1. By law, RC members are required to complete 20 years of qualifying service to be eligible for non-regular retired pay. However, there are other statutory provisions for those who completed 15 or more qualifying years of service but less than 20 years. For example, a member of the Selected Reserve who is medically disqualified for continued service in the RC may be considered as having met the service requirement and may be issued a 15-year letter. 2. Similarly, the SRTBP also allows for the issuance of a 15-year letter to those Selected Reserve personnel who lost their paid drill positions due to inactivation, relocation or reorganization of their units during the drawdown period. Special benefits included separation pay and early qualification for retired pay at age 60 for members with at least 15, but less than 20 years of qualifying service could elect to transfer to the Retired Reserve, and those with at least 6, but less than 15 years of qualifying service could receive separation pay. 3. The applicant's records show he completed 11 qualifying years of service for non-regular retired pay. As previously stated by the DASA (RB), the applicant should have received his annual statements of retirement points, and he should have known when he submitted a request for transfer in 1997 that he had not completed 15 qualifying years of service. The tax forms he provided show he received Army Reserve pay. However, these forms are insufficient to correct his record to show an error in the accounting of his retirement points. Points are not awarded for CME, CPR or related courses unless attendance was in an active duty or active drilling status as part of one’s military training. The applicant provided no evidence to show his additional training was completed while entitled to Reserve pay or conducted in an inactive status with applicable unit attendance forms authenticated by the unit commander authorizing the training. 4. The applicant provides insufficient evidence to show he earned additional retirement points that would allow the correction of his chronological statement of retirement points to show 15 or more years of qualifying service and entitlement to Reserve retired pay. While his current situation and advanced age are noted, based on a lack of evidence to show he had 15 years of qualifying service, he does not meet the statutory or regulatory requirements to receive retired pay 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 AR1999028792, on 27 June 2000 and/or AR2001061241, on 7 March 2002. _______ _ _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) AR20150006997 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006997 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1