MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 18 JUNE 02
         DOCKET NUMBER: AR2002071782

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Allen L. Raub		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, the applicant is requesting that his 26 June 1961 DD Form 214 be corrected to show that he was released from active duty on 6 July 1961, so that he can be credited with three years of active duty.

APPLICANT STATES: That he was discharged early; however, that was not his fault. The review board said to correct his record to show [in effect] service in the Army from 7 July 1960 to 6 July 1961 for a total of 365 days, one year qualifying for retirement purposes; instead of from 7 July 1960 to 26 June 1961 for a total of 355 days, 11 months and 20 days qualifying for retirement purposes. He states in effect that a 2 April 2001 letter from the Army Reserve Command informed him that the 10 days that he was in an inactive status could not be accounted for as retirement points. He requests copies of Title 10, U.S. Code, chapter 1223 and section 1552, in order to overturn the decisions made by the Army Review Boards Agency and this Board.

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

Enclosed with the applicant’s request is a copy of this Board’s 16 October 1996 proceedings which corrected his records to show that his retirement year ending on 6 July 1961 was a qualifying year for retired pay.

On 12 September 1997 the Retired Activities Division at St. Louis informed him of this Board’s decision, and stated that his summary points inquiry had been corrected to show a qualifying year of service during the period 7 July 1960 to 6 July 1961. The Army Review Boards Agency at St. Louis also informed him that his records had been so corrected.

On 2 April 2001, the Army Reserve Command in St. Louis informed a Member of Congress that the applicant’s records were corrected to credit him with 355 retirement points for the retirement year ending in 1961 because that was the number of days that he spent on active duty. The command further stated that the record showed that the applicant transferred from the Regular Army to the Army Reserve ten days prior to completing a full year, and that while those additional ten days were accounted for as part of his transition, they were not accounted for as retirement points as specified by Title 10, U.S.C., chapter 1223.

Army Regulation 135-180 implements statutory authorities governing the granting of retired pay to soldiers and former Reserve Component soldiers. Paragraph 2-1 of that regulation states, in pertinent part, that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of his qualifying service as a Reserve component soldier.

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Paragraph 2-8 of the aforementioned regulation describes qualifying service, as pertains to this case, as service performed as an enlisted person in an active status in a Reserve component or in active federal service. Before 1 July 1949 service in the National Guard, the Army Reserve in an active Reserve status, and the Army without specification of component is qualifying service. After
30 June 1949, a reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service.

Paragraph 2-10 provides instructions for computation of service and states, in effect, that (1) before 1 July 1949, one point will be given for each day of active duty, and 50 points will be awarded for each year of service as a Reserve component soldier. A proportionate part of 50 points for any fraction of a year will be credited; (2) after 30 June 1949, one point will be given for each day of active duty, 15 points will be awarded for each year of membership in an active status in a Reserve component, and one point for each authorized participation in drills or period of instruction. Not more than 60 points per year, including membership points, will be credited for inactive duty training in any one retirement year.

Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for Reserve soldiers. Paragraph 1-4 of that regulation provides the criteria for establishing or changing the retirement year (RY), and states, in effect, that soldiers in an active Reserve status after 1 July 1949, the retirement year will be the date of initial entry or reentry (after a break in service) into a Reserve component, or date of transfer to the Reserve component upon release from active duty, or date of transfer from an inactive Reserve status to an active Reserve status. The retirement year once established will not change as long as the soldier has continuous service in a Reserve and/or regular component.

Title 10 U.S.C, chapter 1223, section 12733, states in pertinent part, that for the purposes of computing retired pay, the person’s years of service and any fraction of such a year are computed by dividing 360 into the sum of the following: (a) the person’s days of active service, (b) one day for each point credited under section 12732(a)(2) of this title, i.e., one point for each attendance at a drill or a period of equivalent instruction, and points at the rate of 15 a year for membership in a Reserve component or in the Army, but not more than 60 days in any one year of service before the year of service that includes 23 September 1996; but not more than 75 days in the year of service that includes 23 September 1996, and in any subsequent year of service that includes the date of the enactment of the National Defense Authorization Act for FY 2001.
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 did not have three years of active service at the time of his release from active duty in 1961. He was 10 days short. Whereas the 16 October 1996 Board rightfully determined that the applicant’s 355 days of continuous active duty should be counted as qualifying for retired pay, there is no good reason to grant the applicant’s request to show that he served on active duty for three years, when in fact he did not. The Board agrees with the 2 April 2001 Army Reserve Command letter to a Member of Congress that the 10 days that the applicant was in an inactive status could not be counted as qualifying for retirement points. There is no evidence that he did anything during those 10 days to earn retirement points.

2. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

3. 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 that requirement.

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

__KAK __ __MHM _ __ALR __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071782
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020618
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	135.00
2.	189
3.
4.
5.
6.