MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE:      14 April 1999
         DOCKET NUMBER: AC96-07859
                                    AR1997000223

         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. Loren G. Harrell		Director
Ms. Juanita I. Williams		Analyst

The following members, a quorum, were present:

Ms. Karen L. Wolff		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Thomas B. Redfern, III		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)

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APPLICANT REQUESTS: In effect, correction of his records by voiding his discharge from the USAR.

APPLICANT STATES: In effect, that he was discharged from the USAR after his second non-selection for promotion to lieutenant colonel (LTC), even though he had completed 18 years of service at the time he was given his options and elected to be retained to complete 20 qualifying years of service for retired pay. If he understands the regulation and statutes correctly, his retention was mandatory upon his election to be so retained. He states that he did not receive any further communication regarding his election of options until he received a copy of his discharge order upon visiting his unit on 3 May 1993.

He also states that during his retirement year ending (RYE) 25 May 1993, he earned 113 retirement points, of which 80 were certifiable on his DARP Form 249-2-1 (Chronological Statement of Retirement Points). He states that there appears to be some confusion among DA civilian and military personnel regarding application of 10 U.S.C. 1006, 1332, and Army Regulation 140-10. He has been told by several people that a soldier must have 18 years showing on his DARP Form 249-2-1 by his mandatory release date (MRD). He has also heard other varying interpretations of both the regulation and the United States Code provisions. He asserts that there is no statutory or regulatory requirement of which he is aware that states entitlement means retirement points do not or cannot accrue until the end of a retirement year. It is his opinion that retirement points accrue as they are earned.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant was appointed second lieutenant, Military Intelligence Branch, USAR, on 26 May 1972 and was promoted to first lieutenant 3 years later. On 17 September 1975 he transferred to the Judge Advocate General’s Corps. On 29 September 1975 he entered active duty in the rank of captain, completed his active duty commitment and was released from active duty and reverted to the USAR on 29 September 1978. He was promoted to major, USAR, on 29 September 1985.

Having entered military service on 26 May 1972 and having had no breaks in service, his RYE date was established as 25 May. His MRD, based upon the maximum length of service authorized by law and regulation was established as 26 June 2000.






On 11 February 1993 the applicant was informed that the Department of the Army Reserve Components Promotion Selection Board for LTC, Army Promotion List, was approved by the Secretary of the Army on 28 December 1992 and he had been non-selected for promotion to LTC. Since this was his second non-selection, he was not authorized to continue in an active drill status, effective 26 March 1993. Therefore, he would be discharged unless he met one of the following conditions: (1) was eligible for and requested transfer to the Retired Reserve; (2) had a service obligation; or (3) had been credited with 18 or more but less than 20 years of qualifying service, as defined in Title 10, US Code, Section 1332. He was further informed that unless he provided his election of options, Army Regulation 135-175 provided for his removal without his consent, and that if he was eligible for, but failed to request, transfer to the Retired Reserve, discharge action would be accomplished. He was given a suspense date for making his election of 25 March 1993. In response, the applicant elected retention to complete 20 qualifying years of service for retired pay, stating that evidence to support his being credited with at least 18 but less than 20 qualifying years of service, along with his Military Personnel Records Jacket, was enclosed. His response is undated.

On 7 April 1993 he was honorably discharged from the USAR, terminating his reserve commission and his military status.

The applicant’s DARP Form 249-2-1 shows that as of RYE 25 May 1992, he was credited with exactly 17 years of qualifying service for reserve retired pay. With his election of options, he submitted evidence of retirement points earned during RYE 25 May 1993 “to date.” The DARP form also shows that for the first 3 years following his appointment, the applicant earned no retirement points and was credited with membership points (15), only.

During the processing of this case, an advisory opinion was obtained from the Office of the Chief, Army Reserve (OCAR) which was forwarded to the applicant for comment. As of this date, no response has been received from the applicant.
In its opinion the OCAR states that the provisions of law (as cited therein) for soldiers with 18 years of qualifying service to remain in an active status for an additional period in order to be credited with 20 years of service does not apply to the applicant’s situation. Under the provisions of Title 10, U.S.C. 1332 (redesignated Title 10, U.S. C. 12732), soldiers must be credited with at least 50 points for each year he or she is eligible to “lock-in” and remain in an active status. A review of the applicant’s records revealed that he had completed less than 18 years of service, and there is no provision in law that would allow his retention in the Reserve.




Title 10, US Code, Section 1006(a) provides that “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 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 or transferred to the Retired Reserve.”

Title 10, US Code, Section 1332 (Computation of years of service in determining entitlement to retired pay), provides pertinently, that for the purpose of determining whether a person is entitled to reserve retired pay, his years of service are computed by adding each 1 year period after 1 July 1949 in which he has been credited with at least 50 points on the following basis: (1) one point for each day of active service or full-time service (applies to National Guardsmen); (2) one point for each attendance at a drill or period of equivalent instruction that was prescribed for that year by the Secretary concerned; and (3) points at the rate of 15 per year for membership in a reserve component of an armed force.

Army Regulation 140-10 restates and implements 10 U.S.C. 1006.

Army Regulation 135-175 sets forth provisions for the removal from an active
status of commissioned officers. It states, pertinently, that officers in the grades of first lieutenant, captain, and major, who have completed their statutory military service obligations will be discharged for failure to be selected for promotion after second consideration by a DA Reserve Components selection board.

Army Regulation 140-185 provides that if a soldier is separated or removed from an active status during a retirement year, the soldier may be credited with a proportionate maximum number of inactive duty training points for that year, as well as the number of membership points authorized for a partial year to determine if that year qualifies for reserve retired pay.

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. Title 10, US Code, Section1006(a) provides that 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 years of service, he may not be discharged or transferred from an active status without his consent.



2. On the date the Department notified the applicant of his second non-selection (11 February 1993), it informed the applicant that effective 26 March 1993
(89 days after the Secretary approved the selection board’s list and 2 months prior to his RYE date) he was no longer authorized to continue in an active status.

3. Recognizing that retirement points are accumulated by a reservist throughout a given retirement year and are not recorded on the DARP Form 249-2-1 until after the year ends, the Board is of the opinion, nonetheless, that on the date prescribed for the applicant’s removal from an active status (26 March 1993), he was entitled to be, and was, properly credited with 17 years of qualifying service for reserve retired pay.

4. Section 1332 of Title 10 provides that for the purpose of determining whether a person is entitled to reserve retired pay, his years of service are computed by adding each 1-year period (underscoring added) after 1 July 1949 in which he has been credited with at least 50 points.

5. The applicant’s retirement year was established as 26 May through 25 May. The Board is of the opinion, therefore, that in order to be credited with the
RYE 25 May 1993, he must have completed that year - not merely have accumulated 50 or more points prior to his removal from an active status for failure of selection for promotion.

6. Because the applicant did not complete the RYE 1993 and although he had accumulated more than 50 retirement points up to the point of his removal from an active status, he was not entitled to be credited with completion of 18 years of service at the time he elected retention in an active status.

7. The foregoing conclusion is supported by the opinion from OCAR.

8. Not being eligible for retention and being eligible for transfer to the retired reserve but failing to elect transfer, the applicant was properly discharged from the USAR following his second non-selection for promotion to LTC, in accordance with Army Regulation 135-175.

9. The regulatory provisions cited above for the crediting on a pro rated basis of retirement points are not applicable for soldiers attempting to establish 18 years of service for retention to complete 20 years for entitlement to reserve retired pay.





10. 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

____X__ ____X___ ____X___ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

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INDEX

CASE ID	AC96-07859/AR1997000223
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	19990414
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.