PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 14 August 2001
         DOCKET NUMBER: AR2001055024


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Vic Whitney		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Joe R. Schroeder		Member
Mr. Ronald E. Blakely		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his records be corrected to show that he is entitled to retired pay at age 60.

3. The applicant states that Army officials assured him that he had completed the qualifying service for retired pay. He had never been previously informed of the requirement that his last 8-years be served in a Reserve Component to qualify for retired pay. He was informed by Army officials in 1979 that he had completed 20 or more years of qualifying service for retired pay and could elect transfer to the Retired Reserve, which he did.

4. The applicant’s military records show that he enlisted and served on active duty from 8 May 1957 to 26 November 1958. He continued his service in the Reserve Component and was commissioned an Army National Guard (ARNG) second lieutenant on 22 June 1963.

5. The applicant’s DD Form 214 (Report of Separation) and DA Form 66 (Qualification Record) shows that he entered active duty on 27 December 1965 and was separated from active duty in the rank of captain on 15 October 1977. His Retirement Points Accounting Summary (RPAS) statement shows that he was credited with Reserve Component service from 27 November 1965 through 26 November 1969, then credited with Regular Army service from 27 November 1969 through 26 November 1976.

6. Effective 16 October 1977 he was appointed a captain in the USAR and assigned to the Individual Ready Reserve. On 7 February 1979, the Reserve Components Personnel and Administration Center informed the applicant that he had not earned sufficient retirement points for the previous year to be retained in an active Reserve status and his removal was mandatory under law. He was also informed that he must earn a minimum of 50 retirement points each year because he was a Reserve officer who had completed 20 or more years of qualifying service for retired pay. The notification informed the applicant that he could request a one-time waiver, discharge, or transfer to the Retired Reserve. The correspondence did not mention that he must have served a minimum of his last 8-years in a Reserve Component.

7. On 21 February 1979, the applicant elected transfer to the Retired Reserve. Effective 31 May 1979, he was transferred to the Retired Reserve. On 30 January 1983 he was issued contingent mobilization orders as a member of the Retired Reserve. His records show that his mandatory removal date had been established as 21 June 1991.




8. The applicant’s RPAS statement shows that he was credited with 20 years, service qualifying for retirement at age 60 on 20 April 1977. It shows that he is credited with 11 years of Reserve Component service between November 1958 and November 1969, all of which are qualifying years of service. He is also credited with one additional year of qualifying Reserve Component service from November 1976 to November 1977.

9. On 18 May 1998, the applicant was informed by the Army Reserve Personnel Command that he must have completed the last 8-years of qualifying service as a member of a Reserve Component to qualify for retired pay at age 60. A review of his records had revealed that, while he had completed the minimum years of qualifying service, he lacked the required additional service in a Reserve Component. The record copy of this letter has a note at the bottom that states that official records show a twenty-year letter (Notification of Eligibility for Retired Pay at Age 60) had been issued on 20 April 1977. However, a review of the records did not reveal a copy of the notification and retired pay was denied based on the applicant not having the required Reserve Component service.

10. The applicant reached 60-years of age on 7 August 1998. On 16 December 1998 the Army Reserve Personnel Command notified the applicant that he might be eligible for retired pay from the Army Reserve. The letter listed four criteria for qualification but did not list the requirement of qualifying service in a Reserve Component for the last 8-years of service.

11. In the processing of this case an advisory opinion was obtained from the Army Reserve Personnel Command, Transitions and Separations Branch. The opinion notes that Title 10, USC, section 12731(a) states that a person is entitled to retired pay if the last eight qualifying years of service were served in a Reserve Component.

12. The advisory opinion was provided to the applicant for comment and possible rebuttal. The applicant noted in his response that the majority of his over 20-years of qualifying service were in a Reserve Component but acknowledged that he did not serve the last eight qualifying years in a Reserve Component. He also points out that he was notified in February 1979 that he had “completed 20 or more years of qualifying service for retired pay…” and that Title 10, USC, section 12738, states that once notification of eligibility for retired pay has been issued, it may not be denied or revoked on the basis of any error unless it resulted from fraud or misrepresentation of the person.






CONCLUSIONS:

1. Notwithstanding the advisory opinion from the Army Reserve Personnel Command that Title 10, USC, section 12731(a) requires the last 8-years of qualifying service for retired pay at age 60 to be performed in a Reserve Component, an exception to policy is warranted in this case.

2. The applicant completed over 20-years of qualifying service, twelve of which are recorded as Reserve Component service, when he transferred to the Retired Reserve on 31 May 1979. Data at the Army Reserve Personnel Command shows that he was credited with 20-years of qualifying service on 20 April 1977. Although no copy of the official notification is in the available record, Title 10, USC, section 12738, raised by the applicant, would appear to be satisfied by the data entry concerning the date of certification of eligibility.

3. The Board believes that it is highly likely that the applicant would have satisfactorily continued his service in the Reserve Components if he had been informed of the requirement. The Board also believes that the correspondence provided the applicant clearly led him to understand that he had satisfied all requirements for retired pay at age 60.

4. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected by:

         a. showing that his last 8-years of qualifying service were in a Reserve Component; and













         b. showing that he is entitled to retired pay at his age 60 and paying him any arrears in pay.

BOARD VOTE:

__wm____ __js___ ___rb___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  ____Walter T. Morrison____
                  CHAIRPERSON

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INDEX

CASE ID	AR2001055024
SUFFIX
RECON
DATE BOARDED	20010814
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	136.04
2.
3.
4.
5.
6.