MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 June 2002
         DOCKET NUMBER: AR2002069832

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Elzey J. Arledge, Jr.		Member
Mr. Thomas Lanyi		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 an exception to policy to reenlist to reach 20 years of qualifying service for a nonregular retirement.

APPLICANT STATES: That since re-entering the U. S. Army Reserve (USAR) in an active status he has passed his Army Physical Fitness Tests (APFTs), has passed every physical exam taken, and has qualified every year at Range Fire. His lack of qualifying years was due to several factors. He was in an automobile accident in May 1996 but he continued to attend drills until about April 1997, when his attorney advised him not to attend drills pending a lawsuit. He was released to attend drills in October, November, and December 1997, but at his December drill he was notified that he had been transferred to the Individual Ready Reserve (IRR). When he was transferred, he was never advised that he could continue to earn points with correspondence courses and participate with a unit for annual training. Also, when a recruiter encouraged him to re-enter the Reserves, he was not advised that he would not be able to complete 20 years by age 60. He was unaware of the regulations until he inquired about a reenlistment. He was confused by the U. S. Army Reserve Personnel Command’s (AR-PERSCOM’s) response that Title 10, U. S. Code prescribes a maximum age of 60 for an enlisted soldier. He states that if he were 59 years and 364 days old he would be able to operate in a combat environment and questions why, one day later, he would not be. Supporting evidence is as listed on the DD Form 149.

EVIDENCE OF RECORD: The applicant's military records are not available. Information contained herein was obtained from alternate sources.

The applicant was born on 5 March 1942. He served with the U. S. Navy and the U. S. Navy Reserve from July 1963 until July 1969. He enlisted in the USAR on 12 December 1982. He was promoted to Staff Sergeant, E-6 on 19 April 1994. He apparently last reenlisted in 1995 for 6 years.

The applicant was reassigned to the IRR on an unknown date. On 8 June 1999, he was released from the IRR and assigned to a troop program unit. Those assignment orders show his expiration term of service as 15 September 2001. He apparently was given an extension until 5 March 2002, his 60^th birthday.

His Chronological Statement of Retirement Points, ARPC Form 249-2-E, shows retirement year ending (RYE) dates 13 December 1986, 13 December 1988, 13 December 1997, 13 December 1998, and 13 December 1999 were non-qualifying for retirement (he had earned less than 50 retirement points those RYEs). He also had several non-qualifying years during his service in the U. S. Navy Reserve. The non-qualifying RYEs are indicated on the ARPC Form 249-2-E by the entries in item 9 (qualifying for retirement) of 00 years, 00 months, and 00 days or, for one entry, of 00 years, 00 months, and 27 days.
On 15 July 2001, the applicant requested an exception to policy for reenlistment to reach 20 years of service for retired pay. AR-PERSCOM denied the request, explaining that, since on mobilization a soldier must function under wartime conditions in a combat environment, it is essential that a maximum age be established and that has been determined to be age 55. However, since a Reserve soldier cannot receive retired pay for qualifying years of Reserve service until age 60, soldiers may remain in an active status until age 60. The applicant would have to be retained until age 64 in order to complete 20 qualifying years of service.

The Army Physical Fitness Test Scorecard, DA Form 705, provided by the applicant shows he completed four APFTs (apparently three record and one diagnostic APFT) between 22 July 2000 and 20 October 2001. He apparently is on a profile since he completed a walk instead of a run for all four of those tests. He failed the sit-up portion on the first two of those tests and passed by two points (minimum passing score 60) the sit-up portion on the latter two tests.

Army Regulation 140-10 prescribes policies, responsibilities and procedures to assign, attach, remove or transfer USAR soldiers. Paragraph 7.3 provides that, with certain exceptions (generally applying to physicians and senior general officers), general officers, other commissioned officers, commissioned warrant officers, and enlisted soldiers will be removed from an active status upon attaining age 60. A warrant officer other than a commissioned warrant officer will be removed upon reaching age 62.

Title 10, U. S. Code, discusses only removal of commissioned officers for maximum age.

Army Regulation 135-180 implements statutory authorities governing the granting of “retired pay” to soldiers and former Reserve components soldiers. Sections 12731 through 12738 of Title 10, U.S. 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. 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 prescribes the types of training and activities for which retirement points are authorized and discusses the procedures for recording retirement point credits. In pertinent part, it states that the annual statement of retirement points tells the soldier whether he/she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status and gives the soldier an opportunity to request correction of errors in the statement. In pertinent part, it states that completion of Army correspondence courses at the rate of one retirement point for each three credit hours satisfactorily completed may be earned by soldiers in the IRR.

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. 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.

2. The Board notes that the applicant has not completed the run portion of the APFT in four tries and barely passed the sit-up portion in two of those tries (and did not pass that portion in the other two tries). The Board believes that this tends to validate AR-PERSCOM’s argument that, since on mobilization a soldier must function under wartime conditions in a combat environment, it is essential that a maximum age be established. Such an age limit protects both the soldier’s interests and the Army’s interests.

3. The Board is not convinced by the applicant’s contention that he was never advised he could continue to earn points with correspondence courses or other ways after he transferred to the IRR or that he was not advised he would not be able to complete 20 years by age 60. He was a noncommissioned officer who had been in the USAR for a number of years. It is not credible that he would never question, if he did not know already, what the 00 years 00 months 00 days entries on his Statement of Retirement Points meant.

4. The applicant should not be confused by AR-PERSCOM’s response that there is a maximum age of 60 for an enlisted soldier (although it is a regulatory requirement and not a statutory one). There are maximum and minimum ages for many activities in society. At age 17 years and 364 days, one is too immature to partake in the country’s voting process; one day later, he is eligible to vote for President. In the Regular Army, a Sergeant, E-5 with 14 years, 11 months, and 29 days of active service is fully capable for performing his duties; one day later, he has reached his retention control point. One day a person is too young for Social Security; the next day he is eligible. The Board does not find it inequitable to deny granting the relief requested.

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

__JNS__ __EJA__ __TL___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069832
SUFFIX
RECON
DATE BOARDED	2002/06/25
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	136.04
2.
3.
4.
5.
6.