MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 14 October 1998
DOCKET NUMBER: AC97-08431
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.
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 he be granted 1 additional day of Active Federal Service (AFS) so that he may qualify for retirement at the rate authorized for over 24 years of AFS.
APPLICANT STATES: In effect, that he was unjustly denied retired pay for over 24 years of AFS because he had only served 24 years of service. He further states that he applied for retirement to be effective 1 December 1996; however, because he had reached his retention control point, he was informed that he could not extend more than 29 days past his established RCP of 24 years. Consequently, his retirement date was changed to 1 November 1996, which resulted in his retiring with exactly 24 years of AFS and being 1 day short of qualifying for pay at the over 24 year rate.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant enlisted on 31 October 1972 and he remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-8 on 1 May 1993.
On 17 July 1995 he extended his enlistment for a period of 9 months in order to meet the RCP for his grade. His new expiration of term of service (ETS) was established as 2 November 1996.
On 13 December 1995 the applicant submitted a request for voluntary retirement for length of service to be effective 30 November 1996. His request for retirement was approved; however, it was approved for an effective date of 31 October 1996.
Accordingly, he was honorably released from active duty on 31 October 1996 and was transferred to the USAR Control Group (Retired) effective 1 November 1996. He had served exactly 24 years of AFS.
Army Regulation 601-280 serves as the authority for reenlistment in the Regular Army and established the RCP for all enlisted grades. It states, in pertinent part, that effective 1 February 1992, personnel serving in the pay grade of E-8 may not exceed their RCP of 24 years by more than 29 days.
Title 5, U. S. Code, section 8301 provides that soldiers retiring for length of service will be placed on the Retired List only on the first day of a month, with release from active duty on the last day of the preceding month.
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 the aforementioned requirement.
2. While it is unfortunate that the applicant was prevented from serving more than 24 years of AFS due to his inability to exceed his RCP by more than 29 days and because of the requirement to retire on the first day of the month; he was properly released from active duty and transferred to the Retired List effective 1 November 1996 in accordance with applicable laws and regulations in effect at the time.
3. The Board notes that the RCP policy is a critical and necessary tool used in the maintenance of a quality force and it is applied to all personnel throughout the force. Therefore, to grant the applicants request would require that he be retired on the first day of the following month, as required by law, and would amount to unjust enrichment that is not afforded to others in similar situations. Consequently, the Board finds that he was properly retired on 1 November 1996 and he has failed to show that an error or injustice exists in his case.
4. Although the Board is sympathetic to the fact that the Department policies in effect at the time have prevented him from being able to serve enough time to qualify for retired pay for over 24 years of service, the existence of such policies do not in themselves constitute an error or injustice on the part of the Department.
5. In view of the foregoing, there is no basis for granting the applicants 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
__EW___ __RWG _ __JS____ DENY APPLICATION
Loren G. Harrell
Director
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