MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 July 2002
         DOCKET NUMBER: AR2002069029

         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:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas Lanyi		Member
Ms. Karen A. Heinz		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 allowed to received retired pay.

APPLICANT STATES: That he entered active duty (AD) as a second lieutenant after graduation from college in June 1953. He served 3 years in Germany and
2 years at Fort Carson, Colorado and Camp McCoy, Wisconsin. He was contemplating on entering the Regular Army and making a career of the service; however, at that time, the President was rifting many officers. He was an artillery officer but due to his accounting background, he was assigned to manage the Officer Club on three different occasions during a 2-year period. He felt that this assignment damaged his artillery experience and in the future could make him a prime candidate for a reduction in force (RIF) before obtaining the necessary
20 years for retirement. After his release from AD in July 1958, he joined the US Army Reserve (USAR). He was an artillery instructor at the Boston Army Base from 1958 through 1969. He was transferred to Fort Leavenworth, Kansas in 1970 and joined the Command and General Staff School Course (CGSC). He was later promoted to major and was transferred from the active reserve to the retired reserve in 1975. During the Persian Gulf Conflict, he received “Hip Pocket Orders” which instructed him to report to Fort Sill, Oklahoma for AD. He questioned how he could be retired and still be subject to mobilization. He was informed that as long as he was under the age of 60, he was subject to being called to AD. Upon age 65, he was having a conversation with an attorney who had just turned 60. They were discussing military service and the attorney questioned why he was not receiving retired pay. He informed the attorney that he had submitted the required forms for his retired pay through the Army Reserve Personnel Center (ARPERCEN) and finance and received the same answer from both agencies. He was informed that his weekly teaching time and CGSC were non-pay status and that he was not entitled to any points earned toward retirement. He was also informed that he needed 50 points per year to qualify for retired pay which upset him because he was never informed of this requirement when he volunteered to remain in the USAR and teach. He could have joined a USAR unit that pulled weekend and summer duty. In support of his application, he submits a copy of his DD Form 214 (Report of Transfer or Discharge) and two letters from the ARPERCEN.

EVIDENCE OF RECORD: The applicant's military records show he was appointed as a Reserve commissioned officer in the rank of second lieutenant
on 9 June 1953. He was ordered to (AD) on 2 July 1953, and continued to serve until he was released from AD on 31 July 1958. He was transferred to the USAR on 1 August 1958.

The applicant’s records contain two letters from the ARPERCEN, subject: Nonparticipation in the USAR, dated 21 July and 12 August 1975. The letters informed the applicant that he had accrued less than 27 points during his retirement years in an active status. The applicant completed the reverse side
of the letters and elected to be transferred to the Retired Reserve.
The applicant’s records contain a copy of US Army Reserve Components Personnel and Administration Center Letter Orders Number 10-318566, dated 28 October 1975. This order states that the applicant was removed from an active USAR status due to failure to earn sufficient retirement points and was transferred to the USAR Control Group (Retired) effective 6 November 1975.

The applicant’s records contain a copy of an ARPC Form 249-3 (Chronological Record of Military Service), dated 26 March 1997, which shows that he completed 5 years of active service and 5 years of service in the USAR for a combined total of 10 years of qualifying service for retirement purposes. This form also shows that he was transferred to the Retired Reserve on 8 January 1992.

The applicant provided a copy of a letter from the ARPERCEN, Retirement Services Branch, dated 15 October 1996. This letter acknowledged receipt of the applicant’s application for Retired Pay Benefits (DD Form 108).

The applicant provided a copy of a letter from the ARPERCEN, Retired Activities, dated 2 April 1997. This letter was in reply to the applicant’s Application for Retired Pay Benefits. It stated that Title 10, United States Code (USC), sections 12731-12737, authorized retired pay for current and former members of the Reserve Components (RC) who have reached age 60 and completed a minimum
20 years of qualifying service. The last 8 years of qualifying service must be performed as a member of the RC. A total of 6 years is permitted for this purpose during the Gulf War until 31 December 2001. Service in an Inactive Reserve status, such as the Retired Reserve, is not creditable for retirement purposes. After 1 July 1949, a Reserve soldier must have earned at least
50 retirement points per year for that service to be creditable for retirement.
An audit of the applicant’s records show that he completed 10 years of qualifying service for retirement and is ineligible to received retired pay.

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 for non-participation reasons 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.

Paragraph 6-3 of Army Regulation 140-10 pertains to ordering Retired Reserve members to AD. It states that Retired Reserve members will be ordered to AD
in their retired status if ineligible for transfer to an active status or placed in an active status if eligible and ordered to AD.



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.

Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) and the Department of Defense Instruction (DODI) 1215.7 (Service Credit for Reserve Retirement), dated 1 March 2001, states, in pertinent part, the maximum number of Reserve retirement points that can be credited each year (cap rule) for the total of Inactive Duty for Training (IDT) points, plus extension course points, plus membership points. Prior to the 23 September 1996, the retirement point cap rule was 60 points per year and after 23 September 1996 through 30 October 2000, the retirement points cap rule was 75 points per year. As of 31 October 2000 to present, the retirement points cap rule is 90 points per year.

The same regulation also states that a Reserve officer who has completed less than 20 years of qualifying service for retired pay are required to accrue a minimum of 27 points each full retirement year of retention in an active status.

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 evidence of record shows that the applicant completed a total of 10 years of qualifying service for retirement purposes. The evidence of record also shows that he submitted the required forms to the ARPERCEN and finance; however, he was informed that his weekly teaching time and CGSC were a non-pay status



and that he was not entitled to any points earned toward retirement. The applicant was also informed that he needed 50 points per year to qualify for retired pay; however, he stated that he was never informed of this requirement when he volunteered to remain in the USAR. The Board concludes that the applicant is not entitled to retired pay.

2. The applicant was notified in writing in reference to his non-participation in the USAR and was informed that he had accrued less than 27 points during his retirement years in an active status and elected to transfer to the Retired Reserve effective 6 November 1975.

3. The Board notes that the applicant failed to completed a minimum of 20 years of qualifying service, or to show that he accrued a minimum or 27 points each full year while in an active status. The Board also notes that his service in an inactive Reserve status, such as the Retired Reserve, was not creditable for retirement purposes.

4. The Board further concludes the applicant knew, or should have known of the requirements for retired pay eligibility, and that he failed to meet those requirements.

5. 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.

6. 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

__ao___ ___tl___ ___kh___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069029
SUFFIX
RECON
DATE BOARDED	20020730
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19751106
DISCHARGE AUTHORITY	AR .140-10
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 338
2.
3.
4.
5.
6.