MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 August 2001
         DOCKET NUMBER: AR2001056056

         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Mr. Christopher J. Prosser		Member
Ms. Linda D. Simmons		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)

---

APPLICANT REQUESTS: Validation of his “good years” served in the U.S. Army Reserve (USAR) toward issuance of a “20-Year Letter”.

APPLICANT STATES: In effect, that he was credited with 16 years, 5 months and 13 days of qualifying education and/or experience at the time of his appointment as a medical officer in the USAR. He contends, in effect, validation of this “constructive service credit” for retirement purposes will entitle him to non-regular retirement at age 60. In support of his application, the applicant submits a letter, dated 14 July 2000, from the U.S. Army Reserve Personnel Command to a Member of Congress concerning his eligibility for retired pay.

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

The applicant was appointed as a medical officer in the USAR on 20 April 1989. Prior to his appointment, he served as an enlisted member in the USAR, served on active duty as an enlisted member in the Regular Army and served as a Reserve officer on active duty. On 27 August 1990 the applicant was ordered to active duty in support of Operation Desert Shield/Storm and was honorably released from active duty on 26 May 1991 and transferred to the USAR.

On 22 April 1996 the applicant tendered his qualified resignation under the provisions of Army Regulation 135-175, chapter 6 (Resignations).

On 9 July 1996 the applicant was honorably discharged from the USAR in the rank of lieutenant colonel.

Item 18a (Net Active Service This Period) on the applicant’s DD Form 214 with an effective date of 1 July 1979 shows that he served 6 years, 11 months and
22 days of active service. Item 18b (Prior Active Service) on the DD Form 214 shows that he served 1 year, 4 months and 26 days, a total of 8 years, 4 months and 18 days of total active service. Item 18d (Prior Inactive Service) shows that he served 2 years, 11 months and 25 days of inactive service.

The applicant applied for appointment in the USAR on 12 October 1988. His records contain DA Form 5074-R (Record of Award of Entry Grade Credit (Medical and Dental Officers)), dated 16 November 1988, which shows he was credited with 11 years, 4 months and 25 days of constructive credit for his education and experience. This form also shows that he was credited with
5 years and 28 days of prior service credit, for a total of 16 years, 5 months and 13 days.

His records also contain a Retirement Waiver Statement, dated 24 April 1988, which states “I understand that it is unlikely that I will be able to complete
20 years qualifying service for retirement purposes under the provisions of
10 U.S.C. 1331 and 1332 prior to being removed from an active status under applicable laws and regulations”.

AR-PERSCOM Memorandum, dated 21 March 1989, shows the applicant was appointed as a Reserve commissioned officer on 20 April 1989 and was credited with 16 years, 5 months and 13 days. This memorandum also shows that this service is “not valid for pay entry basic date” and is “not the result of prior military service”.

As a result of the applicant’s service in support of Operation Desert Shield/Storm he received a DD Form 214. Item 12c (Net Active Service This Period) on this DD Form 214 with an effective date of 26 May 1991 shows that he served
9 months of active service. Item 12d (Total Prior Active Service) on the DD Form 214 shows that he served 8 years, 4 months and 18 days, a total of 9 years,
1 month and 18 days of total active service. Item 12e (Total Prior Inactive Service) on the DD Form 214 shows that he served 4 years, 4 months and
2 days of inactive service.

The applicant’s Chronological Statement of Retirement Points shows he was credited with a total of five years of qualifying service for non-regular retirement at age 60 between the period 24 May 1979 to 9 July 1996 (credited with
54 retirement points for inactive duty from 24 May 1979 to 23 May 1980;
51 retirement points for inactive duty from 24 May 1989 to 23 May 1990;
59 retirement points for inactive duty from 24 May 1991 to 23 May 1992;
59 retirement points for inactive duty from 24 May 1992 to 23 May 1993; and
72 retirement points for inactive duty from 24 May 1994 to 23 May 1995). The Board notes that the applicant’s prior inactive service (2 years, 11 months and
25 days) shown on his DD Form 214 with an effective date of 1 July 1979 is not shown on his Chronological Statement of Retirement Points.

The applicant provided a copy of a letter, dated 14 July 2000, from the U.S. Army Reserve Personnel Command to a Member of Congress concerning his eligibility for retired pay. This letter states that the applicant’s military service record and documentation provided by the applicant did not confirm that he had 20 qualifying years of service and that he was not eligible for retired pay.

Sections 1331 through 1337 of Title 10, United States 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. This law further requires that the last 8 years of qualifying service must in a Reserve Component.

Army Regulation 135-180 states in paragraph 2-3, that a 20-Year Letter will be issued to the Reserve Component soldier within 1 year after they complete
20 years of qualifying service for retirement. This letter will be issued by the Chief, National Guard Bureau for ARNG soldiers, and the Commander, Army Reserve Personnel Command (AR-PERSCOM) for USAR soldiers. The letter, once issued, may not be withdrawn or revoked. The soldier may voluntarily elect to transfer to the Retired Reserve or be discharged from the Army.

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. The Board considered the applicant’s contention that validation of his “constructive service credit” for retirement purposes will entitle him to non-regular retirement at age 60. However, evidence of record shows that the applicant was credited with 16 years, 5 months and 13 days for his education, experience and prior active commissioned service, not for the purpose of retirement.

2. The Board also noted that the applicant signed a Retirement Waiver Statement on 24 April 1988 which states “I understand that it is unlikely that I will be able to complete 20 years qualifying service for retirement purposes under the provisions of 10 U.S.C. 1331 and 1332 prior to being removed from an active status under applicable laws and regulations”.

3. Evidence of record shows the applicant served 9 years, 1 month and 18 days of total active service. The applicant’s Chronological Statement of Retirement Points shows that he was credited with 5 years of qualifying service between
24 May 1979 and 9 July 1996 for non-regular retirement at age 60. Therefore, the applicant’s creditable service for non-regular retirement is 14 years, 1 month and 18 days.

4. Since the applicant’s Chronological Statement of Retirement Points does not reflect his inactive service performed before July 1972, the Board is unable to determine whether this period of service was qualified service for retirement purposes.

5. There is no evidence that the applicant completed 20 years of qualifying service for entitlement to non-regular retirement benefits at age 60. Therefore, the applicant is not eligible for non-regular retired pay.

6. 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.



7. 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

RVO____ CJP____ LDS_____ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001056056
SUFFIX
RECON
DATE BOARDED	20010830
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	136.0400
2.
3.
4.
5.
6.