MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 December 2002
         DOCKET NUMBER: AR2002073506

         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. Raymond V. O'Connor, Jr.		Chairperson
Mr. Harry B. Oberg		Member
Mr. Stanley Kelley		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 her transfer to the Retired Reserve be revoked, that she be reinstated in the US Army Reserve (USAR), and placed in an active reserve unit.

APPLICANT STATES: That she was not aware that she was assigned to the Retired Reserve and that she had not received any correspondence from the Army Reserve Personnel Command (AR-PERSCOM) placing her in the Retirement Control Group. She kept in touch telephonically on several occasions with AR-PERSCOM updating her files and ensuring that her records were correct.

EVIDENCE OF RECORD: The applicant's military records show she enlisted in the USAR on 22 July 1976, with prior military service. She continued to serve in the USAR through a series of continuous reenlistments.

On 8 November 1999, Headquarters, USA Special Operations Command published orders releasing the applicant from her troop program unit (TPU) and assigned her to the USAR Reserve Control Group (Reinforcement) effective 8 November 1999.

The applicant’s records contain a copy of her Chronological Statement of Retirement Points which shows that she had completed 23 years of qualifying service for retirement purposes.

The applicant was released from the USAR Control Group (Reinforcement), Individual Ready Reserve (IRR), on 28 December 2000, for nonparticipation and was assigned to the Retired Reserve.

The applicant provided a copy a memorandum, dated 23 May 2002, from the Chief, Military Technician Program Division. The memorandum congratulated the applicant on her selection to the position of Supply Technician with the 99^th Regional Support Command (RSC), Equipment Concentration Site 93, Fort Eustis, Virginia. This position required USAR membership as a condition of employment.

In the processing of this case, a staff advisory opinion was provided by
Chief, 81^st Regional Support Team. The opinion stated that applicant was identified for nonparticipation as a result of failure to maintain the minimum
50 point requirement in accordance with Army Regulation 140-10. She was provided with an ARPC FL 3948, dated July 2000 (Subject: Nonparticipation in the US Army Reserve) and elected to be transferred to the Retired Reserve according to orders published by AR-PERSCOM on 28 December 2000. Due to the lack of filing space within the division, documents were only maintained for a period of 6 months in cases like this; therefore, the documents with her signature were no longer available for reference. This agency had contacted Fort McCoy to obtain the date the applicant submitted her application for employment as a Military Supply Technician and had discovered that they no longer had a file on her. Based on her letters of acceptance from Fort McCoy, they indicated that it was sometime in 2001/2002 when they received her request for employment.
Based on the information available, it is this office's opinion that the applicant should remain in the Retired Reserve without further consideration.

The applicant was provided a copy of this opinion for possible comment

In her rebuttal, she stated that she requested that she be released from the Retirement Control Group and placed into an Individual Mobilization Augmentee (IMA) or Selected Reserve unit. She was voluntarily transferred to the USAR Control Group on 8 November 1999. On 12 June 2000, she received orders from her command which ordered her to Annual Training for 12 days with duty at the 300^th Area Support Group, Fort Lee, Virginia. She constantly kept in touch with the AR-PERSCOM regarding her current status and had attempted to reenter the active reserve. She had spoken with AR-PERSCOM who informed her that she was placed in the Retirement Control Group. She was not aware and had not received any correspondence placing her in the Retirement Control Group. She also stated that she had been accepted into a reserve unit as supply sergeant with the 78^th Division at Fort Lee, Virginia, waiting for orders to be published by the command with an anticipation date of June 2002, and was selected for a position with the 99^th RSC.

Army Regulation 140-10 sets 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 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 7-3.1 of the regulation states that an enlisted solder who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status. Enlisted soldiers who failed to attain 50 points by the anniversary of their retirement year ending (RYE) date will be removed from an active status.

Paragraph 7-12, of the regulation states that there are exceptions to specific reasons for removal from an active status. Failure to earn the required 50 retirement points may be authorized by the area commander (for soldiers assigned to a TPU or by the Commander, AR-PERSCOM. USAR soldiers must request a waiver and submit documentation to show that nonparticipation was due to circumstances beyond their control. Such circumstances are defined as those of personal or temporary nature such as illness or civilian employment. A waiver of nonparticipation may be granted only on a one-time basis for failure to earn the required 50 points during a retirement year.
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 be 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.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The evidence of record shows that as a member of the IRR, who had completed 23 years of qualifying service for retired pay, she was required to earn a minimum of 50 points in each subsequent RYE; however, she failed to earn 50 retirement points during her RYE of 21 July 2000, was declared an unsatisfactory participant, and elected transfer to the Retired Reserve, which she has no recollection of.

2. The advisory opinion stated that the applicant was identified for nonparticipation as a result of failure to maintain the minimum 50-point requirement in accordance with regulation. She was provided with the proper documentation and elected transfer to the Retired Reserve according to
AR-PERSCOM on 28 December 2000. Also due to a lack of filing space within the division, documents with her signature were no longer available for reference.

3. The Board also notes that the applicant had been selected to a Supply Technician position with 99^th RSC and that the position required USAR membership as a condition of employment. It was also noted that she was currently awaiting orders to be published by the command that accepted her for the position. However, the applicant was assigned to the Retired Reserve at the time of her selection. Therefore, this Board concurs with the recommendation
rendered by the advisory opinion for the applicant to remain assigned to the Retired Reserve.

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

__ro___ ___ho__ ___sk____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073506
SUFFIX
RECON
DATE BOARDED	20021219
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	20001228
DISCHARGE AUTHORITY	AR 140-10
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	192
2.
3.
4.
5.
6.