PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 14 May 2002
         DOCKET NUMBER: AR2001059575


         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Donald P. Hupman, Jr.		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 reconsideration of his request for correction of his records to show he is credited with at least 20 years of qualifying service for Reserve retired pay.

3. The applicant stated that he moved to Peru in 1947. He feared he would not be able to continue with Army training while living in South America. He stated that he contacted the U.S. Military Attache at the U. S. embassy in Lima, Peru, who advised him that, in light of his prior service as a Military Intelligence Officer and Military Attache, he could earn creditable points for retirement providing service in support of the U. S. Military Attache. The discharge certificate was issued on 1 April 1953 and did not reach him until he returned to Puerto Rico in 1962 after residing in Peru for about 15 years. He never interpreted the Honorable Discharge Certificate as a document terminating his commission in the U. S. Army Reserve (USAR). The U. S. Military Attaches whom he served subsequent to 31 March 1953 did not think his commission in the USAR had terminated.

4. Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 23 June 1982 (docket number AC81-00976).

5. The applicant was born on 25 September 1913. He was commissioned a second lieutenant in the Officer Reserve Corps on 10 June 1936. He was promoted to lieutenant colonel on 31 January 1946.

6. The applicant’s Chronological Record of Military Service, ARPC Form 249-3, dated 25 July 2001 shows he had qualifying years of service for retirement until retirement year ending date 30 June 1950, when he earned only 15 membership points. (Prior to 1 July 1949, qualifying service required only active participation.) He earned only 15 membership points from that date until he was discharged effective 1 April 1953 under operation of law. As of 1 April 1953, he had 15 years, 7 months, and 8 days of qualifying service for retirement and 19 years, 4 months, and 8 days of service for longevity pay.

7. In the processing of this case, an advisory opinion was obtained from the U. S. Army Field Support Center, U. S. Army Intelligence and Security Command, Special Liaison Office, U. S. Army Reserve Personnel Command. That office cited two references -- Defense Intelligence Agency Manual 58-13 (S), Volume Three, Part Three, Chapter Ten, Reserve Exploitation Program (REP) (U) dated 28 March 1988 and Department of the Army 381-21 (S), Department of the Army Reserve Exploitation, Army (U) dated 10 February 1986. Based upon these references and the letters received by the applicant during the period 1948 – 1957 from the Defense Attache Officers in Lima, Peru, that office recommended the applicant be awarded 50 retirement points for the years 1948 through (April) 1953. That office later clarified its recommendation to state, absent the fact of the applicant’s retirement by operation of law in April 1953, he should be awarded 50 retirement points for the years 1948 through 1957.

8. A copy of the advisory opinion was provided to the applicant and he concurred with the advisory opinion.

9. After Public Law 810 – 80^th Congress, approved 29 June 1948 provided for retirement with pay for officers and enlisted personnel of the Reserve components of the Armed Services and established certain requirements for service which may be credited for retirement on a point system, the Army published Special Regulation 140-180-25 dated 27 May 1949. It established Semi-Annual and Annual or Terminal Statements of Retirement Points (DA AGO Forms 1382 and 1383). The DA AGO Forms 1382 and 1383 would be furnished each member of the Active Reserve – the DA AGO Form 1382 at the mid-point of each retirement year and the DA AGO Form 1383 upon completion of each retirement year or termination of Active Reserve status. The purpose of the DA AGO Form 1382 was to provide the reservist with a statement of retirement points earned during the first 6 months of the retirement year by active duty, attendance at drills, or other directed Reserve duties creditable for retirement benefits by which the Reservist could plan a program of participation in reserve activities to meet the requirements for a satisfactory year toward retirement and retention in the Active Reserve.

10. War Department Circular 356, Organized Reserve Corps, Except General Officers, dated 3 December 1946 stated that whenever a reservist’s permanent home address, temporary address, or status was changed or the reservist intended to travel to or establish residence in a foreign country, a report thereof would be submitted to the commanding officer of the reservist’s military area, district, or unit to whom he had previously reported his old permanent home address. Army Regulation 135-133 is the current regulation which prescribes responsibility and procedures for screening the Ready Reserve during peacetime. It states each soldier must furnish a permanent home address and a temporary address when away from that permanent address for more than a month.

11. 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, effective 1 July 1949, 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.

12. Title 10, U. S. Code, section 12738(a) states that, after a person is granted retired pay under this chapter or is notified in accordance with section 12731(d) of this title that the person has completed the years of service required for eligibility for retired pay under this chapter, the person’s eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service performed unless it resulted directly from the fraud or misrepresentation of the person. Section 12731(d) states that the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay under this chapter.

CONCLUSIONS:

1. The applicant was a senior commissioned officer. Not only was it common sense to have kept his Reserve chain of command advised of his address change, it was required by regulation. Had he kept them informed of his new address or other appropriate valid mailing address, presumably he would have received notification of the 9 July 1952 change in law and received notification of the opportunity to accept an indefinite term appointment in lieu of discharge.

2. The Board is not convinced by the applicant’s contention that he did not interpret the Honorable Discharge Certificate as a document terminating his commission in the USAR. The Board does not see how any other interpretation of the word “Discharge” could be made. The Board is not convinced by his contention that the U. S. Military Attaches whom he served subsequent to 31 March 1953 did not think his commission in the USAR had terminated. They were not his personnel officers or in his chain of command. It was not their responsibility to check on his USAR status and they rightfully relied upon the applicant, a senior commissioned officer, to know his own status.

3. The Board is not convinced by the applicant’s contention that, after he moved to Peru in 1947, the U.S. Military Attache in Lima, Peru advised him he could earn creditable points for retirement providing service in support of the U. S. Military Attache. The Military Attache was not his personnel officer. It would have been reasonable to expect a senior commissioned officer to have contacted his Reserve chain of command to ask them to confirm the information the Military Attache gave him concerning earning retirement points. Even so, had he kept his Reserve chain of command informed of his new address in Peru as required he presumably would have received information regarding the establishment of the Semi-Annual and Annual or Terminal Statements of Retirement Points and would have received said forms. Then, had he noticed that those forms were not crediting him with the retirement points he believed he was earning, he could have questioned and resolved the discrepancy immediately.

4. Notwithstanding the above, the applicant did provide military service to the Military Attaches in Lima, Peru. From the support letters provided, it appears this service was performed during the period November 1948 to July 1957. The advisory opinion, based upon current regulatory guidance, recommended the applicant be awarded 50 retirement points for the years 1948 through (April) 1953 (later clarified to recommend, absent the fact the applicant was retired by operation of law in April 1953, he should be awarded 50 retirement points for the years 1948 through 1957). The Board notes that he is already credited with “good” qualifying years through RYE 30 June 1949. Crediting the applicant with 50 retirement points from RYE 30 June 1950 through 1 April 1953 would give him 19 years, 4 months, and 8 days of qualifying service.

5. Since the applicant was discharged by operation of law effective 1 April 1953, a fact the applicant would have known had he been reasonably prudent in managing his career, it would not be appropriate to credit him with retirement points earned after this date. Again, however, he did perform an additional 3 years of qualifying service (per the advisory opinion) after this date. The Board concludes that it would be equitable to show he was given his notification of eligibility for retired pay at age 60 (his 20-year letter) on 31 March 1953; his pay to be calculated on the number of retirement points he is credited with earning as of 31 March 1953.

6. 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:
a. showing the applicant was awarded 50 retirement points for retirement year ending dates 30 June 1950, 30 June 1951, 30 June 1952, and 1 April 1953;
b. showing the applicant was issued a notification of eligibility to receive retired pay at age 60 on 31 March 1953;

c. showing the applicant applied for retired pay on 1 September 1973; and

d. paying the applicant retired pay retroactive to 13 September 1973, the date he turned age 60.

2. The Army has an established program to counsel retiring soldiers on the rights, benefits, and privileges afforded as a result of military retirement. Retirement Services Officers (RSO) are available at most major Army installations to provide a retirement briefing, which includes information on the Survivor Benefit Plan (SBP). The applicant is advised to contact his nearest RSO (list enclosed ) as soon as possible to facilitate a smooth transition to retired status. If he elects to enroll in the SBP, premiums would be due from the first date he was eligible to enroll.

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

BOARD VOTE:

__mhm__ __kan___ __dph___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Melvin H. Meyer
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001059575
SUFFIX
RECON
DATE BOARDED	20020514
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	135.02
2.	136.04
3.
4.
5.
6.