MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 August 2001
         DOCKET NUMBER: AR2001054753

         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. Carl W. S. Chun		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. James E. Vick		Chairperson
Ms. Barbara J. Ellis		Member
Mr. William D. Barr		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: That his records be corrected to reflect his service in Panama from December 1989 to May 1990 and at the National Training Center (NTC) in 1984. He also requests a Certificate of Discharge or Release from Active Duty, DD Form 214, to show his service in Panama.

APPLICANT STATES: In effect, that he would like his records corrected to show his retirement years ending (RYEs) 8 June 1984 (or 8 June 1985) and 8 June 1990 were qualifying years for retirement.

EVIDENCE OF RECORD: The applicant's available military records (his fiche is not available) show:

He was commissioned a second lieutenant in the U. S. Army Reserve (USAR) on 9 June 1978.

The available records do not show that the applicant served on active duty at the NTC in 1984 or any other year. He did not provide the Army Achievement Medal he apparently received for this service. He did not provide any officer evaluation report (OER) that he might have received for this assignment. He did not state exactly when he served at the NTC so it cannot be determined which RYE would be affected. His Leave and Earnings Statements (LESs) for the 12 monthly periods January – December 1984 were obtained and they do not show that he performed anything other than unit training, additional training assemblies, or readiness management assemblies during the entire year.

The applicant provided an OER for the period 24 December 1989 – 7 May 1990. It shows that he was on active duty and assigned as a member of the Judicial Liaison Group with responsibility for coordinating reestablishment of Panama’s judicial system during Operation Just Cause and Promote Liberty. (He also received an 8-rated month annual OER for the period 15 April 1989 – 14 April 1990 which indicated that the period from “23 December 1989 to 14 April 1990” was not rated as a separate OER from Operation Just Cause covered that period. In addition, he received an 8-rated month change of rater report for the period 15 April 1990 – 9 December 1990 which indicated that the 4 non-rated months were due to Operation Just Cause.) However, his LESs for the monthly periods December 1989 – May 1990 were obtained and they do not show that he performed any active duty. (The LES for March 1990 is largely illegible.)

The applicant was honorably discharged effective 31 July 1995 upon his second non-selection for promotion to Major. He had completed 16 qualifying years of service for a non-regular retirement. His Statement of Retirement Points Summary shows that RYE 8 June 1984 was a qualifying year for retirement with 4 active duty points recorded; RYE 8 June 1985 was not a qualifying year for retirement with 14 active duty points recorded; and RYE 8 June 1990 was a qualifying year for retirement with 7 active duty points recorded.
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 USAR soldiers. In pertinent part, it states that annual or terminal statements of retirement points give a permanent record of the total retirement points a soldier earns during a retirement year. The statements tell the soldier whether he or she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status. They also give the soldier an opportunity to request correction of errors in the statement.

On 15 August 2001, phone conversation with the Army Reserve Personnel Command (AR-PERSCOM), Veterans Support Branch indicated that they can prepare DD Forms 214 for discharged soldiers if they have enough verifying documentation. They could not prepare a DD Form 214 based upon an OER alone. They would require at least active duty orders and LESs to verify the active duty period.

In the processing of this case, an advisory opinion was obtained from AR-PERSCOM. AR-PERSCOM stated that they could find no supporting documents with dates for the training the soldier was claiming. Evaluations did support that training was performed but due to his retirement year ending date points could not be awarded without actual dates of the training performed. AR-PERSCOM recommended that the applicant provide LESs to support any additional retirement points he claims to have earned.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal. He responded that he has two OERs that reflect his service in Panama and the NTC. He was awarded an Army Achievement Medal for his service at the NTC. He was issued, although he never received, an Armed Forces Expeditionary Medal for his service in Panama. He needs a DD Form 214 to receive his educational benefits. Unfortunately, his Reserve unit did not keep up his records to reflect his status as a unit commander, his numerous overseas assignments in Germany, and his retirement points credits. He provided three OERs, for the periods ending 14 April 1990, 7 May 1990, and 9 December 1990, with his rebuttal.

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, 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 this requirement.

2. The evidence of record shows that the applicant is already credited with a qualifying year for nonregular retirement for RYE 8 June 1990. Active duty credit for an assignment at the NTC may or may not credit him with an additional retirement year depending on if he served there in RYE 8 June 1984 (already a qualifying year) or RYE 8 June 1985 (not already a qualifying year).

3. In any case, the applicant provides no evidence to show he was on active duty at the NTC in 1984 and his LESs for that year do not substantiate his claim.

4. The applicant provides an OER for the period he was in Panama during Operation Just Cause but the period of that service is not completely substantiated by the two other OERs he provides as evidence. In addition, there are no active duty orders or LESs to substantiate the period of that active duty. This precludes the possibility of providing the applicant a DD Form 214 for that period or determining exactly how many active duty retirement points he may be entitled to.

5. The applicant should have been aware of these two problems with his retirement points in 1984/1985 and 1990 when he received his annual statement of retirement points. At this point in time the Board cannot reconstruct his active duty with the available evidence.

6. 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:

__jev___ __bje___ __wdb___ GRANT – PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001054753
SUFFIX
RECON
DATE BOARDED	20010821
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	135.02
2.
3.
4.
5.
6.