MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE:
         DOCKET NUMBER: AR2001064463

         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. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Richard T. Dunbar		Member
Mr. Elzey J. Arledge		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)

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APPLICANT REQUESTS: In effect, that he be transferred to the Retired Reserve and issued a 20-Year Letter.

APPLICANT STATES: In effect, that he completed 22 years, 11 months, and
13 days of creditable service. He also states that according to Department of the Army (DA) Pamphlet 360-526, dated 1982, that he is authorized “after 20 years of satisfactory service in any combination of Active and Reserve time, to be transferred to the Retired Reserve and authorized retired pay at age 60.” He
recently noticed that the information had changed; however, his discharge for unsatisfactory performance should not prevent him from being transferred to the Retired Reserve. In support of his application, he submits copies of: several
DD Forms 214 (Certificate of Release or Discharge from Active Duty); an abstract from the “Once a Veteran” DA Pamphlet 350-526, dated 1982; an
ARPC Form 606-E (Retirement Points for his Reserve Service); and a copy of his ARPC-249-E (Chronological Statement of Retirement Points).

EVIDENCE OF RECORD: The applicant's military records show he enlisted in the US Army Reserve (USAR) on 28 February 1961, for a period of 8 years.
He continued to serve until he was honorably discharged on 14 May 1968, in order to reenlist.

He enlisted in the Regular Army (RA) on 15 May 1968. He continued to serve through a series of continuous reenlistments until he was discharged on 8 May 1984, under the provision of Army Regulation 635-200, chapter 13, for unsatisfactory performance.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 18 July 1985. The ADRB determined that
his discharge was proper and equitable and denied his request on
19 May 1986.

The applicant provided a copy of his Chronological Statement of Retirement Points, dated 27 November 2001, which shows that he completed 16 years of active service and 6 years of service in the USAR for a combined total of
22 years, 2 months, and 11 days of qualifying service for retirement purposes.

In the processing of this case an advisory opinion was provided by the
Army Reserve Personnel Command (AR-PERSCOM), Retirement and Annuities Supervisor. AR-PERSOM stated that Title 10, United States Code (USC), chapter 67, authorized retired pay for current and former members of the Reserve Components (RC) who have reached age 60 and completed a minimum



of 20 years of qualifying service. The last 8 years of qualifying service must be performed as a member of the RC. Any time after the first 12 years of qualifying service, regardless of the component, a member must complete 8 additional qualifying years of service as a Reservist. The last 8 years of Reserve service need not be consecutive. However, only those periods of service, which were performed solely in a Reserve status, are counted. A review of the applicant’s records show that he completed the minimum years of qualifying service, but lacks additional qualifying service as a Reserve soldier to satisfy the requirement of the last 8 years of qualifying service in a RC.

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

In his rebuttal, the applicant made reference to DA Pamphlet 360-526, dated 1982, that was provided to him at the time of his discharge, which stated that
“after 20 years of satisfactory service in any combination of Active and Reserve time, individuals will be eligible for military retired pay beginning at age 60.” This Pamphlet stated what benefits, rights, and obligations that he was entitled to at the time of his discharge; however, he does not understand the reason why an incorrect statement was printed in the Pamphlet. He also made reference to the paragraph 3, of the advisory opinion, which stated that he “completed the minimum years of qualifying service.” The definition of “Qualify” means to “make legally capable”; and “Legally” means “permitted by law” and: “capable” means “having the qualities necessary.” He further stated that he did qualify for retired pay at one time and should not have to qualify a second time due to a misprint in DA Pamphlet 360-526. He believes that the Pamphlet was correct and complete and that he should not be penalized for an incorrect or incomplete statement. He was unaware that he had to serve another 8 years in the USAR and that the Pamphlet stated the facts differently. Current guidance
now states that his last 6 to 8 years must be in a RC; however, he did not have access to this information. He concludes by stating that it is unfair to receive nothing for his 22 years of service which 2/3 of his time was served on active duty.

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,
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. This regulation also states service, which was performed concurrent in the Regular Army, must be followed by
8 years of qualifying service in a Reserve Component and that when this requirement is met the soldier will receive a 20-Year letter.

Army Regulation 135-180 prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, United States Code, chapter 67, sections 1331 to 1337. This regulation specifies, in pertinent part, that to be eligible for retired pay an individual must have attained age 60 and completed a minimum of 20 years of qualifying service and that, subsequent to 1 July 1949, qualifying service is granted for each year of service an individual earns 50 or more retirement points.

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 in a Reserve Component.

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.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The evidence of record shows that the applicant completed over 6 years of qualifying service as a Reservist and was discharged in order to enlist in the RA.
He enlisted in the RA and continued to serve in the RA for a period of 16 years until he was involuntarily separated due to unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.

2. The evidence of record shows that he completed over 22 years of qualifying service for retirement purposes, which was above the minimum years of service needed; however, he lacked additional qualifying service as a Reserve soldier to satisfy the requirements of the last 8 years of qualifying service in a RC.

3. The Board notes the applicant’s rebuttal; however, he did not qualify for retirement and has provided no supporting evidence to show that he should be transferred to the Retired Reserve, or to be issued a 20-Year Letter. Therefore, he is not entitled to be transferred to the Retired Reserve and is not entitled to be issued a 20-Year Letter.






4. 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

__mp___ __rd____ __ea___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064463
SUFFIX
RECON
DATE BOARDED	20020411
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19840508
DISCHARGE AUTHORITY	AR . 635-200, C 13
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 303
2.
3.
4.
5.
6.