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Decision Text

ARMY | BCMR | CY1997 | 9710616
Original file (9710616.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, that he be credited with 20 qualifying years for retirement.
APPLICANT STATES : That upon his separation in July 1975, he had 19 years, 3 months and 23 days active military service and by law he should have been allowed to extend to be able to complete 20 years. He was told he would receive retirement pay at age 60. He was never told that he had to do at least 8 years in the active reserve to qualify for that retirement pay.

 COUNSEL CONTENDS : Counsel makes no statement and submits no documents.

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

He was born on 15 January 1938. He enlisted in the U.S. Army Reserve on 15 August 1955 and served in the Army and the Navy Reserves until 14 January 1962. On 15 January 1962, he enlisted in the Regular Army.

On 28 May 1970, the applicant was convicted by a special court-martial for disobeying a lawful order from his superior warrant officer not to sign his, the warrant officer’s, name or initials to any Army supply document. He was sentenced to forfeit $50 pay for 3 months, suspended.

The applicant was honorably discharged on 25 July 1970.

The applicant reenlisted in the Regular Army on 31 March 1971 for 3 years.

Around February 1974, the applicant received a Department of the Army (DA) bar to reenlistment. Headquarters DA message 221348Z February 1974, based upon a recorded erroneous basic active service date (BASD) of 2 May 1956, authorized him to extend his current enlistment in order for him to complete 20 years active federal service and so make him eligible for an active duty retirement.

On 28 February 1974, the applicant extended his enlistment for a period of 28 months, giving him a new expiration term of service (ETS) of 31 July 1976.

In April 1975, after reviewing the bar to reenlistment, his company and battalion commanders recommended that, based upon his continued inability to pay his just debts and his failure to display traits of character and leadership desirable in a professional non-commissioned officer, the denial of reenlistment be affirmed.
On 9 May 1975, the U. S. Army Military Personnel Center (MILPERCEN) noted that an erroneous BASD had given the applicant credit for almost 6 years of service that was only inactive federal service time. Based upon his correct BASD of 18 January 1962, his 20-year retirement eligibility date would be 31 January 1982, not 31 July 1976 as determined based upon the erroneous BASD and for which he had been granted an extension. MILPERCEN determined his denial of reenlistment would remain in effect and he should be separated with a reentry eligibility code of RE4, not eligible for reenlistment, nonwaiverable disqualification.

On 11 June 1975, the applicant received a letter of reprimand for failing to return to duty after a dental appointment. The letter was filed in his local records.

Based upon MILPERCEN’s decision, the applicant requested immediate separation.

On 31 July 1975, the applicant was honorably discharged, in pay grade E-6. His DD Form 214 shows he had completed a 13 years, 3 months and 23 days of total active service and 19 years and 3 months of total service for pay. The applicant signed the DD Form 214.

On 13 January 1995, the VA notified the applicant that he was eligible to obtain an Armed Forces identification card for commissary and exchange privileges because he was 100 percent disabled (70 percent for post-traumatic stress disorder, raised to 100 percent for unemployability).

Army Regulation 635-200 provides that a soldier who has completed 20 years active federal service and who has completed all required service obligations is eligible to retire.

Army Regulation 140-1 provides policy guidance on the mission, organization and training of the U.S. Army Reserve. In pertinent part, it states that Standby Reserve soldiers (active) may earn retirement points or promotion credit or both.

Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers.

Sections 12731 through 12738 of Title 10, U.S. Code, authorize retired pay for Reserve component 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. 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. In addition, the last 8 years of qualifying service must be served as a Reserve component soldier.

 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. At the time of his discharge in 1975, the applicant had completed less than 14 years of active federal service and only 19 years 3 months (recently recomputed at 19 years, 3 months and 2 days) of qualifying service for a Reserve retirement. Since he had less than 18 years of active federal service, no law required that he be allowed to extend to meet retirement eligibility.

 3. As a senior non-commissioned officer, the applicant had a responsibility to himself to determine his retirement status. He should have known that not all his service time counted as active federal service; he did know that he had less than 20 years of total service. He could have elected to remain in service until his ETS on 31 July 1976 and attempt to use that additional year to overcome his bar to reenlistment; instead he requested early discharge at a time he knew he was not eligible for any type of retirement.
4. While the applicant may not have been eligible for enlistment in a Reserve component unit, he provides no evidence to show that he even attempted to request a waiver to enlist in such a unit, which would have provided him an opportunity to earn a Reserve retirement.

5. In view of the foregoing, there appears to be 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




                 Loren G. Harrell
                                              Director

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