PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 9 July 2002
         DOCKET NUMBER: AR2002063084


         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. Roger W. Able		Member
Mr. Thomas B. Redfern		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 retired status from the USAR be changed from retired without benefits to retired with full pay and benefits due to his years and points.

3. The applicant states he was unable to complete the last 9 years of qualifying service in the USAR. He attempted to receive points from reassignment to a mobilization designee (MOBDES) position to allow him to obtain the required points to qualify for good years before his retirement in 1994. He also attempted to obtain these years by making requests to his counselor at the Army Reserve Personnel Command (AR-PERSCOM). In support of his application, he submits a copy of ARPC Form 249-2-E (Chronological Statement of Retirement Points).

4. The applicant's military records show he enlisted in the United States Marine Corps Reserve on 13 March 1956, and continued to serve until honorably discharged on 24 June 1958. He was credited with two qualifying years of Reserve Component Service.

5. He enlisted in the Regular Army (RA) on 25 June 1958, and continued to serve until he was honorably discharged on 2 May 1961. He was transferred to the USAR and continued to serve until honorably discharged on 31 March 1962.

6. He reenlisted in the RA on 1 April 1963, and continued to serve until honorably discharged on 22 February 1972.

7. After a break in service, he enlisted in the USAR on 16 December 1973. The records indicate that he was assigned to Reserve Component units only during the period December 1973 through December 1977. For the remainder of his
17 years service he was assigned to the Individual Ready Reserve.

8. He was released from the USAR on 1 November 1994 and was assigned to the Retired Reserve. There is no evidence of record that he was issued a Certificate of Eligibility for Retired Pay at Age 60 (20-Year Letter). The applicant attained only three qualifying years of service between December 1977 and November 1994.

9. The applicant provided a copy of his Chronological Statement of Retirement Points, which shows that he completed 21 years of qualifying service for
retirement purposes as of 15 December 1984. This chronological record shows that he was credited with only 40 retirement points for his retirement year ending on 15 December 1981, and was credited with 62 points for his retirement year ending on 15 December 1977.




10. In the processing of this case an advisory opinion was provided by the
Army Reserve Personnel Command (AR-PERSCOM), Retirement and Annuities Supervisor. AR-PERSCOM stated that the applicant did not meet the requirements of Title 10, United States Code (USC), section 12731 for a Reserve Component retirement at age 60 because he did not have the last eight qualifying years in a Reserve Component. The applicant had only the last seven qualifying years in a Reserve Component.

11. The applicant was provided a copy of this opinion for possible comment.

12. In his rebuttal, he stated that on numerous occasions, he attempted to be placed in a troop program unit (TPU) or MOBDES position in the USAR, which occurred between 1992 and 1994, and was unable to get satisfaction. The Reserve units that he spoke with at that time, both in person and telephonically, had no vacant E-8 positions or were not willing to carry him as excess for points only. He does not feel that he was provided the opportunity to complete the AR-PERSCOM requirements.

13. Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers. Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.

14. Sections 12731 through 12739 of Title 10, USC, 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. After 1 July 1949, a qualifying year is one in which a Reserve soldier earned 50 retirement points or more. This law further requires that the last
8 years of qualifying service must be in a Reserve Component.

15. The term “good years” is an unofficial term used to mean years 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.

16. Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), indicates, in pertinent part, that to be eligible for retired pay, an individual need not have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and, (3) served the last 8-years of his or her qualifying service as a Reserve Component soldier.




CONCLUSIONS:

1. The evidence of record clearly shows that the applicant did not serve the last 8 years of qualifying service as a Reserve Component soldier; he only completed 7 years of qualifying service. The evidence of record also shows that the applicant failed to earn 50 retirement points or more during his last 10 years of service. However, he did have 40 retirement points in the retirement year ending 15 December 1981.

2. Notwithstanding that the applicant failed to achieve his last 8 years of qualifying service in a Reserve Component, the applicant has sufficient excess retirement points that can be redistributed to his unqualifying retirement year ending on 15 December 1981. This redistribution would not involve awarding additional retirement points, entitlement to additional drill pay, or adding an additional period of service.

3. It would now be in the interest of justice to redistribute the necessary excess retirement points from his retirement year ending on 15 December 1977, to his
retirement year ending on 15 December 1981, and showing that retirement year as qualifying for retirement.

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 individuals concerned be corrected:

a. by redistributing the necessary excess retirement points from his retirement year ending 15 December 1977, to his retirement year ending on 15 December 1981, and showing that retirement year as qualifying for retirement; and

b. by paying him retired pay effective the date of this Board Proceeding.



BOARD VOTE:

__jl___ ___ra___ __tr____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _____Joann Langston__
                  CHAIRPERSON

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INDEX

CASE ID	AR20021063084
SUFFIX
RECON
DATE BOARDED	20020709
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19911101
DISCHARGE AUTHORITY	AR 140-10
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 338
2.
3.
4.
5.
6.