MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 April 2002
         DOCKET NUMBER: AR2001066265

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Ms. Melinda M. Darby		Member
Mr. John T. Meixell		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: That he be granted a United States Army Reserve (USAR) Retirement, effective when he reached age 60.

APPLICANT STATES: In effect, that he was illegally denied a USAR Retirement at age 60, when he had previously been certified as eligible for retirement in 1979. He further states, in a lengthy brief, that once he had been certified as eligible to receive retired pay, it could only be revoked if it was determined that it had been obtained through fraud and such was not the case. He goes on to state that in 1983, he was illegally issued mobilization orders yearly until he reached age 60 in the year 2000. However, when he applied for retired pay it was unjustly denied. Additionally, he asserts that he was twice non-selected for promotion to the rank of major because of more administrative errors on the part of the Army Reserve Personnel Command (ARPERSCOM), which resulted in their not properly crediting him with the appropriate amount of points for his retirement year. His counsel asserts, in effect, that the applicant has adequately explained his position.

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

He was commissioned as a USAR second lieutenant on 2 February 1963. He entered active duty on 13 June 1963, was promoted to the rank of first lieutenant on 13 December 1964, and was honorably released from active duty (REFRAD) on 1 June 1965. He had served 1 year, 11 months and 19 days of total active service and was transferred to the USAR Control Group (Annual Training).

On 14 October 1965, he accepted an appointment in the Ohio Army National Guard (OHARNG). He was promoted to the rank of captain on 25 January 1968 and remained in the OHARNG until he was discharged on 31 December 1968, and was transferred to the USAR Control Group (Standby - Inactive), where he remained until 30 May 1972, when he was transferred to the Reinforcement Control Group.

His records contain two promotion consideration data sheets which contain his signature and indicate that he verified the information contained therein.

On 15 August 1978, the Reserve Components Personnel and Administration Center (RCPAC), now known as ARPERSCOM, notified the applicant that he had been twice nonselected for promotion to the rank of major and that he must be discharged within 90 days unless he had a service obligation, requested transfer to the Retired Reserve or had been credited with 18 or more, but less than 20 years of creditable service for Retired Pay purposes.

The applicant elected to be transferred to the Retired Reserve and orders were published on 19 January 1979 transferring him to the USAR Control Group (Retired), effective the same date. At the time he elected to be transferred to the Retired Reserve, he acknowledged that he understood that his transfer would be in an inactive status and that he would be ineligible to participate in Reserve training for retirement credits or promotion purposes.

On 30 January 1983, the RCPAC published mobilization orders (also referred to as hip-pocket orders) informing the applicant that he was subject to recall from the Retired Reserve until he reached age 60.

On 16 February 2000, the ARPERSCOM, in response to an application for retired pay at age 60 from the applicant, informed him that he was not eligible for retired pay at age 60 because he had only 8 years of creditable service for Retired Pay purposes. He was also informed that service in an inactive Reserve section such as the Retired Reserve, was not creditable for retirement purposes and that he was required to earn 50 points per year to have a creditable year. Of the 20 years necessary to qualify, the last 8 years had to be spent in the Reserve Components. He was provided a summary account of his retirement points, which showed that he had creditable years for retirement from 2 February 1963 to 1 February 1969. He also had creditable years in 1974 and 1977. During the remaining years he failed to achieve 50 points per year due to lack of participation.

Army Regulation 140-10, in effect at the time, prescribes the policies, procedures, and responsibilities to assign, attach, detail, remove or transfer members of the USAR. It provides, in pertinent part, that officers who are twice nonselected for promotion, who have at least 8 years of creditable service for retired pay, may request to be transferred to the Retired Reserve in lieu of discharge. Personnel placed in the Retired Reserve may be ordered to active duty in their retired status if ineligible for transfer to an active status or placed in an active status if eligible and ordered to active duty. Transfer to the Retired Reserve is inactive service and such a transfer may only be accomplished at the request of the service member.

Title 10, U.S. Code, sections 12731 - 12737 provides the authorization for USAR Retired Pay at age 60. It provides, in pertinent part, that a qualifying year of service for Retired Pay purposes is a year in which a member earns at least 50 retirement points in a retirement year. Once a member has earned 20 creditable years for retirement purposes, of which the last 8 years are spent in a Reserve Component, a 20-year letter will be issued to the applicant which constitutes authority/eligibility to receive Retired Pay upon application, at age 60. Once the 20-year letter has been issued, the only way such authority can be revoked is if it can be proven that it was obtained through fraud.

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 applicant’s contentions have been noted by the Board and appear to be without merit.

2. The applicant was twice nonselected for promotion to major after he reviewed his records for completeness and elected to be transferred to the Retired Reserve, which made him eligible for recall. Placement in the Retired Reserve is inactive service and does not accrue retirement points, a fact that the applicant acknowledged at the time he requested transfer to the Retired Reserve.

3. The applicant has never attained retirement eligibility nor has he ever qualified or been issued a Certificate of Eligibility for Retired Pay at Age 60 (20-Year Letter). Accordingly, the Board finds that his request for Retired Pay at age 60 was properly denied in accordance with governing law and regulations, with no violations of any of the applicant’s rights.

4. 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.

5. 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

___md __ ___jm___ __inw ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001066265
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/04/16
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 337	135.0500/RET ELIG DATE
2.
3.
4.
5.
6.