APPLICANT REQUESTS: In effect, the applicant requests retirement pay. APPLICANT STATES: That his retirement points for 1975 should reflect a good year. He was attached to the United States Military Academy as a liaison officer and accumulated more than 50 points. He was erroneously discharged and not given the opportunity to obtain one more good year for retirement. He had a good year for 1975 when assigned as a liaison officer. He requests that he be granted retirement pay for 20 years of service retroactive to his 60th birthday. EVIDENCE OF RECORD: The applicant's military records show: The applicant entered the Army as an enlisted soldier in 1956. He was appointed a second lieutenant in the Reserve in June 1957, completed his active duty commitment and on 19 August 1959 was relieved from active duty and transferred to the Reserve. He remained in the Reserve until his discharge on 25 May 1982. A chronological record of military service which the applicant furnished with his request, indicates that he had 18 years, 11 months, and 18 days of total qualifying service for retired pay, and 25 years, 10 months, and 25 days of total service. The applicant was a military academy liaison officer from 18 June 1974 to 17 June 1975, and he received a total of 60 retirement points for the retirement year 28 June 1974 to 27 June 1975 (a “good” year). The applicant was credited with a total of 30 retirement points for the RYE period ending on 27 June 1976 (28 June 1975-27 June 1976), 1 point for recruiting duty, 14 points for active duty, and 15 membership points (“not a good year”). Certificates of training show that the applicant completed phases I through VI of Command and General Staff College (C&GSC), completing phases V&VI in 1975. The applicant was promoted to lieutenant colonel on 29 July 1977. A notice of enrollment termination from the C&GSC at Fort Leavenworth indicates that the applicant’s enrollment in that course was terminated on 7 April 1978 because of his failure to complete annual progress requirements for the enrollment year. On 11 August 1980 the applicant was notified that he had to be mandatorily removed from an active status in the Reserve because of his failure to complete C&GSC prior to the third anniversary of the effective date of his promotion to lieutenant colonel. The applicant was requested to express a preference, transfer to the Retired Reserve or discharge from the Army Reserve. The applicant indicated in a note at the bottom of a 2 October 1980 tracer action from the Army Reserve Personnel Center, that he forwarded documents indicating completion of C&GSC, and was informed by an officer in infantry branch (Reserve Components Personnel and Administration Center), not to worry about it anymore. An informal note, dated 24 October 1980, by the aforementioned infantry branch officer concerning the applicant’s Command and General Staff College (C&GSC) completion status indicates that the papers submitted by the applicant did not show completion of C&GSC and that that officer had called Leavenworth and discovered that the applicant was terminated in April 1978 because he never did his paper. On 20 April 1981 the Acting Deputy Commandant at the C&GSC notified the applicant that his request for constructive credit to satisfy the writing requirement was denied. On 4 February 1981 the applicant requested re-enrollment in the non-resident C&GSC to complete the writing assignment. On 6 February 1981 the applicant was again requested to exercise the options available to him - transfer to the Retired Reserve or discharge from the Army Reserve. He noted on the bottom of this notification that he had completed Phases I through VI of C&GSC, and had also completed the National Industrial College. He indicated that he had asked for a waiver for the writing requirement, to be completed within 90 days. On 23 March 1982 the applicant was informed that his request for retention to complete C&GSC was denied, and requested that he again record his preference. The applicant was discharged from the Army Reserve on 25 May 1982. A 14 March 1996 memorandum from the Chief of the Retirement Services Branch at St. Louis indicates that the applicant’s records and documentation were reviewed when he (the applicant) applied for retirement in 1991, and he had 18 years, 11 months, and 18 days of qualifying service and 25 years, 10 months, and 25 days for longevity. Army Regulation 135-180 implements statutory authorities governing the granting of retired pay to soldiers and former Reserve Component soldiers. Paragraph 2-1 of that regulation states, in pertinent part, that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of his qualifying service as a Reserve component soldier. Paragraph 2-8 of the aforementioned regulation describes qualifying service. After 30 June 1949, a reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service. Paragraph 2-10 provides instructions for computation of service and states, in effect, after 30 June 1949, one point will be given for each day of active duty, 15 points will be awarded for each year of membership in an active status in a Reserve component, and one point for each authorized participation in drills or period of instruction. Not more than 60 points per year, including membership points, will be credited for inactive duty training in any one retirement year. Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for Reserve soldiers. Paragraph 1-4 of that regulation provides the criteria for establishing or changing the retirement year (RY), and states, in effect, that after 1 July 1949, the retirement year will be the date of initial entry or reentry (after a break in service) into a Reserve component, or date of transfer to the Reserve component upon release from active duty, or date of transfer from an inactive Reserve status to an active Reserve status. The retirement year once established will not change as long as the soldier has continuous service in a Reserve and/or regular component. Army Regulation 140-10, then in effect, prescribes the policies and procedures to assign, remove, and transfer Army Reserve soldiers. Chapter 3 provides for removal of soldiers from an active status and states that soldiers removed from an active status will be discharged or transferred to the Retired Reserve. Paragraph 3-2 of that regulation states, in effect, that officers who fail to complete C&GSC within 3 years of the date promoted or appointed to lieutenant colonel will be removed from an active status. The period will be computed from the effective date of promotion. An exception may be granted when it appears that an officer cannot complete C&GSC within 3 years. Request must be forwarded no later than 60 days before the end of the 3-year period. Waivers may be granted only when the best interest of the Army is served and such waiver will only be for 6 months. Title 10, U.S. Code, section 1006 states, in pertinent part, that (a) if on the date prescribed for the discharge or transfer from an active status of a reserve commissioned officer he is entitled to be credited with at least 18, but less than 19, years of service computed under section 1332 of this title, he may not be discharged or transferred from an active status under Chapter 337, 361, 363, 573, 837, 861, or 863 of this title or chapter 21 of title 14, without his consent before the earlier of the following dates - (1) the date on which he is entitled to be credited with 20 years of service computed under section 1332 of this title; or (2) the third anniversary of the date on which he would otherwise be discharged from an active status. Subsection (d) states that subsection (a) [above] does not apply to officers who are discharged or transferred from an active status for physical disability, for cause, or because they have reached the age at which transfer from an active status or discharge is required by law. In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from a military assistant to the OASA (M&RA), who quoted subsection (a) of the aforementioned statute, and opined that because the applicant had attained over 18 years of service he should not have been involuntarily released from a Reserve active status. That official, however, recommended a legal review be conducted prior to a resolution of this case. In a follow-up to that opinion, that official stated that an officer with 18 years of service is considered to have sanctuary, i.e., able to remain in the Reserve until completion of 20 qualifying years of service. An advisory opinion (COPY ATTACHED) was obtained from the legal advisor to the Army Review Board Agency. That official stated that the applicant’s discharge did not violate the statute of the U.S. Code, and that the sanctuary provisions of Title 10 U.S.C. 1006 did not apply. DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded: 1. The applicant did have a qualifying year (a “good” year) for the period 28 June 1974 to 27 June 1975, earning 60 points. Notwithstanding the applicant’s contentions, the number of points for the following year (28 June 1975 to 27 June 1976) were not enough to qualify him for a “good” year. There is no information in his records of any additional points earned for that RYE. The applicant had 18 years, 11 months, and 18 days of qualifying service for retired pay. This information has been confirmed by an official at the Retirement Services Branch at St. Louis. The applicant himself stated that he needed one more good year for retirement. 2. Title 10, U.S. Code, subsection (a) quoted above, repeated here in part, states that ... he may not be discharged or transferred from an active status under Chapter 337, 361, 363, 573, 837, 861, or 863 of this title or chapter 21 of title 14, without his consent... The applicant was not discharged from the Reserve under the provisions of any of the aforementioned chapters. Consequently, Section 1006 of Title 10 is not applicable to the applicant’s situation, notwithstanding the information contained in the advisory opinion from the official in the OASA (M&RA). This conclusion is supported by the advisory opinion from the legal advisor to the Army Review Board Agency. 3. The applicant had completed all phases of C&GSC almost two years before his promotion to lieutenant colonel, failing to complete only a written requirement. He had ample opportunity both before and after his promotion to complete this requirement, or to request a waiver prior to the end of the 3 year period (3 years from the effective date of his promotion). He neglected to take any action until he was notified that he would be mandatorily transferred or discharged. 4. The applicant’s discharge from the Army Reserve in 1982 because of his failure to complete C&GSC was proper. He did not have 20 qualifying years of service for retired pay, and is therefore not eligible for retired pay. 5. The applicant has submitted neither probative evidence nor a convincing argument in support of his request. 6. 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 the aforementioned requirement. 7. 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 DENY APPLICATION Karl F. Schneider Acting Director