MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 July 2002
         DOCKET NUMBER: AR2002067744

         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Ted S. Kanamine		Chairperson
Mr. Henry B. Oberg		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: In effect, that his records be corrected to show he completed 20 years of qualifying service in the U.S. Army Reserve (USAR) for receipt of non-regular retirement pay and benefits at age 60.

APPLICANT STATES: That he would like to complete his points for retired pay and that he requested several times in 1995, 1999 and 2000 for an update of his retirement points in order to complete the necessary service to receive at least 20 creditable years for retired pay benefits. He claims that he was not offered any support to complete his remaining points, but was told to wait until a review of his retirement points was completed.

In support of his application, he submits a supplemental letter; a letter from the U.S. Army Personnel Command (AR-PERSCOM), dated 8 November 2001; his Chronological Statement of Retirement Points; a letter from the Retired Activities Division, dated 11 April 1995; a printout of his Summary Points Inquiry; his letter to AR-PERSCOM requesting retired pay benefits; a DD Form 2656 (Data for Payment of Retired Personnel); orders reassigning him to the USAR Control Group (Retired); and two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge).

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

The applicant was born on 17 January 1942. He served as an enlisted soldier on active duty from 12 May 1966 through 3 May 1967. He was appointed as a Reserve commissioned officer on 4 May 1967 in the rank of second lieutenant. He was honorably released from active duty on 1 June 1971 and transferred to the USAR Control Group (Standby). The applicant continued to serve in the USAR until he was transferred to the Retired Reserve effective 23 September 1986 in the rank of lieutenant colonel.

Records show the applicant was promoted to the rank of major effective 15 September 1976.

His personnel records contain an official notice of enrollment which shows he was enrolled in the Command and General Staff Officers Course (CGSOC) as of 1 October 1977.

A certificate of completion from the U.S. Army Command and General Staff College shows he completed 50 percent of the CGSOC as of 23 May 1979.

He was promoted to the rank of lieutenant colonel effective 15 March 1983.

The applicant's service personnel records contain a letter, dated 19 July 1986, with a suspense date of "Aug 19 1986" from the U.S. Army Reserve Personnel Center which notified him that his official records show that he had failed to complete the CGSOC. He was advised that if this information was incorrect, he should send in documentary proof of completion of this course. He was further advised that if he had not completed CGSOC, he should complete the enclosed option form to indicate whether or not he wanted to be transferred to the Retired Reserve or whether he wanted to be discharged. However, there is no evidence in the applicant's records that shows he completed the option form within the time allotted or that he completed the CGSOC.

Orders were published by the U.S. Army Reserve Personnel Center on 23 September 1986, which transferred the applicant from the USAR Control Group (Standby) to the USAR Control Group (Retired) in accordance with Army Regulation 140-10, paragraph 6-2 (Assignments, Attachments, Details, and Transfers).

The applicant's personnel records do not contain a certification for eligibility for retirement benefits at age 60 (commonly known as a "20-year retirement letter") or otherwise show that he completed 20 qualifying years of service for
non-regular retirement at age 60.

The applicant provided a letter, dated 8 November 2001, from the Chief, Transition and Separations Branch, which forwarded him a printout of his retirement points summary for the period 14 January 1966 through 9 October 2001. This document shows that he served 19 years of qualifying service for Reserve retirement benefits at age 60. The applicant was advised that “service in an inactive reserve section, such as the Retired Reserve, is not creditable for retirement purposes” and that “since July 1, 1949, a Reserve soldier must have earned at least 50 retirement points per year for that service to be creditable retirement”. Accordingly, it was determined that he was ineligible to receive retired pay and benefits at age 60.

Sections 12731 through 12739 of Title 10, United States 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. 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.

Section 12732 of Title 10, United States Code, governs entitlement to retired pay for non-regular service and specifically provides for computation of years of service creditable toward non-regular retired pay. Section 12732(b)(1) states that service (other than active service) in an inactive section of the Organized Reserve Corps or of the Army Reserve, or in an inactive section of the officers’ section of the Air Force Reserve may not be counted for the purposes of entitlement to retired pay.

Army Regulation 140-10, effective 1 May 1983, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers. Chapter 7 of the regulation governs the removal of soldiers from an active status. Paragraph 7-5 (Failure to Complete Military Education Requirements (removal rule 5)) of this chapter applies only to officers and states that officers who do not complete the Command and General Staff College within three years of appointment or promotion to lieutenant colonel will be removed from an active status. This provision of regulation does not apply to lieutenant colonels who were not required to complete 50 percent of the Command And General Staff College for promotion to lieutenant colonel, who were selected for promotion to lieutenant colonel by a board that convened before 1 July 1972, or who are assigned to the staff specialist (SS) branch unless assigned to the Selective Service System.

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 served as a Reserve commissioned officer on active duty from 4 May 1967 to 1 June 1971. Upon release from active duty, he was transferred to the USAR Control Group (Standby).

2. Records show the applicant was promoted to lieutenant colonel in the USAR effective 15 March 1983.

3. By regulation, the applicant was required to complete the CGSOC within 3 years of his promotion date to lieutenant colonel; therefore, he was required to complete CGSOC prior to 15 March 1986.

4. There is no evidence that the applicant completed the CGSOC.

5. Evidence of record shows the applicant was transferred from the USAR Control Group (Standby) to the Retired Reserve effective 23 September 1986 because he failed to complete 100 percent of the CGSOC. At the time of his transfer to the Retired Reserve, he had completed 19 years of qualifying service for non-regular retired pay at age 60.

6. Based on the foregoing, the Board determined that the applicant's transfer to the Retired Reserve prior to completing 20 qualifying years was in accordance with regulation in effect at the time.

7. Further, the applicant has provided no evidence that his transfer to the Retired Reserve was in error or unjust, particularly because he had 9 years to complete the CGSOC.

8. 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.

9. 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

TSK_____ HBO_____ JTM_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067744
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020711
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	135.0200
2.
3.
4.
5.
6.