PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 10 OCTOBER 2001
         DOCKET NUMBER: AR2001058376


         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Charles Gainor		Member
Mr. Joe R. Schroeder		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. In effect, the applicant requests that his record show that he had 20 qualifying years for retired pay at age 60 with all the attendant benefits.

3. The applicant states that he called the Army Reserve Personnel Command at St. Louis and was informed that he only had one year of Reserve service.

4. The applicant’s military records show that on 27 August 1979 the applicant enlisted in the Army Reserve for 6 years as a cadet at South Carolina State College. Subsequently, on 14 September 1979 he enrolled in the senior ROTC program advanced course at South Carolina State College as a non-scholarship cadet with assignment to the Army Reserve Control Group (ROTC). On 7 May 1982 he was discharged from the Army Reserve Control Group (ROTC).

5. The applicant’s DD Form 214 shows that he entered on active duty on 9 February 1982. On 25 June 1987 he reenlisted in the Army for 6 years. On 27 October 1992 the applicant requested separation in order to receive a special separation bonus (SSB), agreeing to serve in the Army Ready Reserve as a condition of his receiving the bonus. He was discharged at Fort Ord, California on 24 June 1993 in the pay grade of E-6 and received a SSB of $34,805.46. The applicant had 11 years, 4 months, and 16 days of active service and 10 days of inactive service.

6. The applicant enlisted in the Army Reserve for 3 years on 25 June 1993. Orders published by Headquarters, 108^th Division (Institutional Training), an Army Reserve command, on 2 December 1993 show that the applicant was voluntarily reassigned to the Army Reserve Control Group (Annual Training/Reinforcement) at St. Louis on 2 December 1993. On 6 March 1995 the applicant was voluntarily reassigned from the Army Reserve Control Group to the 108^th Infantry Battalion in Lumberton, North Carolina. On 26 March 1996 he was again reassigned to the Control Group at St. Louis, and on 26 November 1996 he was discharged from the Army Reserve. The order directing that discharge was voided on 24 January 1997. On that same date orders were published reassigning the applicant to the Retired Reserve effective on 27 January 1997. The reason given indicated on the order was completion of 20 or more years of Reserve duty. The applicant was 38 years old at the time of his reassignment to the Retired Reserve.

7. A 2 July 2001 copy of the applicant’s retirement points taken from the Retirement Points Accounting System, depicts the applicant’s active duty service, and his Reserve service since his discharge from active duty. The summary of his retirement points indicates that he had less than 13 years of qualifying service for retired pay at age 60, with only one of those years, his retirement year (RY) from 29 January 1995 to 28 January 1996, a qualifying year while he was in the Army Reserve.

8. In a 3 July 2000 advisory opinion an official of the 81^st Regional Support Team at St. Louis stated that the applicant was erroneously retired, that he did not meet the qualifications for transfer into the Retired Reserve, that he did not have 20 qualifying years of service for issuance of a 20 year letter, to include having the last 6 years of qualifying service in the Army Reserve. That official recommended that the applicant’s orders transferring him to the Retired Reserve be revoked, and he be reinstated into the Army Reserve Control Group or discharged as he so chooses. The applicant was furnished a copy of the advisory opinion on 16 July 2001 for his information and possible rebuttal. He did not respond.

9. Army Regulation 140-10, paragraph 6-2, provides for the transfer of soldiers to the Retired Reserve and states in pertinent part that eligible soldiers must request transfer. Eligible soldiers include those who had reached the age of 37 and completed a minimum of 8 years of qualifying Federal service.

10. That same regulation states, in pertinent part, that a soldier who is not receiving retired pay and is otherwise qualified may be transferred to the Ready Reserve or to an appropriate troop program unit (TPU) or individual mobilization augmentee (IMA) position vacancy. The transfer must be voluntary based on the soldier’s request.

11. Army Regulation 135-180 implements statutory authorities governing the granting of retired pay to soldiers and former Reserve Component soldiers. Paragraph 2-1 of that regulation states, in pertinent part, that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of his qualifying service as a Reserve component soldier. The requirement to serve the last 8 years of qualifying service was changed to 6 years for the period beginning on 5 October 1994 through 30 September 1999.

12. Paragraph 2-3 of that regulation states in pertinent part that each Reserve component soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing within 1 year after he has completed that service (20 year letter). The notification will be issued to those individuals credited with 20 years of qualifying service prior to discharge or transfer to the Retired Reserve.

CONCLUSIONS:

1. There is no evidence or documentation to show that the applicant requested transfer to the Retired Reserve; however, absent evidence to the contrary it is assumed that his transfer was at his request. He was eligible for transfer to the Retired Reserve based upon his qualifying years of Federal service and his age.

2. The reason for his transfer as indicated on his orders, however, is incorrect. The applicant did not have 20 qualifying years of service, was not issued a 20 year letter; and therefore, is not entitled to retired pay at age 60. The applicant may have thought otherwise, especially in view of the notation in his orders that he did have 20 or more years of Reserve duty.

3. Nonetheless, the applicant is not entitled to have his record show that he had 20 qualifying years of service for retired pay at age 60. To do so would be a disservice to those soldiers who have served the requisite period of service to be eligible for retired pay at age 60.

4. However, the Board agrees with the advisory opinion in the respect that the applicant should be given the opportunity to be reinstated in the Ready Reserve.
Consequently, he should be allowed 180 days from the date of the decision of this Board to be reinstated in the Ready Reserve, should he so choose. Should he decline to transfer to the Ready Reserve, the date that he voluntarily declines terminates the 180 day period.

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

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by allowing the applicant 180 days from the date of the decision of this Board to transfer to the Ready Reserve. Should he decline, the date that he voluntarily declines terminates the 180 day period.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__LLS___ ___CG__ __JRS __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  ____Luther L. Santiful___
                  CHAIRPERSON

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INDEX

CASE ID	AR2001058376
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011010
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	136.01
2.	334
3.
4.
5.
6.