PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 21 October 2003
         DOCKET NUMBER: AR2002074087


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. William D. Powers		Member
Mr. Frank C. Jones, II		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests reconsideration of his earlier appeal to have his records corrected to show that he is qualified for retired pay at age 60. He also requests that he be allowed to appear in person before the board.

3. The applicant states that he should not have been involuntarily transferred to the Retired Reserve when he had more than 19 but less than 20 years of service. In support of his contentions he submits an Army Reserve Components Personnel and Administration Center (RCPAC) Pamphlet 140-3 dated June 1973. He cites the section entitled Authorized Exceptions to Removal Actions and quotes paragraph d which reads "A Reserve officer entitled to be credited with 19 or more but less than 20 qualifying years Federal service must not be removed from active status prior to the date he is credited with 20 years of such service or prior to the date he would otherwise have been removed, whichever is earlier." He points out that completion of the Command and General Staff Course (C&GSC) is not a requirement for entitlement for Retired Pay at age 60. He also contends that the fact that he was promoted to first lieutenant while on deferred active duty shows that he was not in an inactive status. In support of his request he submits an Army Reserve (USAR) Information Pamphlet for Non-Obligated Officers.

4. Incorporated herein by reference are military records which were summarized in the Memorandum of Consideration (MOC) prepared to reflect the Board's previous consideration of the case (AR2001054536) on 10 July 2001.

5. The applicant's submission contains new argument that requires board consideration.

6. A 23 August 1967 memorandum informed the applicant that he had been promoted to first lieutenant effective 6 February 1967 and an annual retirement points statement for the period 7 February 1966 to 6 February 1967 shows that he earned 15 membership points but no other points. As noted in the previous MOC he initially entered active duty on 8 April 1968.

7. As also noted in the previous MOC, the applicant was promoted to lieutenant colonel (LTC) on 6 April 1984 and was involuntarily transferred to the Retired Reserve on 21 August 1987 with 19 years, 8 months and 20 days of qualifying service due to failure to complete the C&GSC. The previous MOC did not show that the applicant had completed 50 percent of C&GSC (a requirement for promotion to LTC) on 25 April 1977.

8. The 21 August 1987 orders transferring him to the USAR Control Group (Retired) states "Reason: Completion of 20 or more years in the Reserve."

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9. The available records also shows that the applicant, a mobilization designee, had no troop program unit service and usually performed active duty as an instructor at various USAR schools. He performed active duty in early June 1985 and late June–early July 1986 as an instructor at civil affairs schools at Fort Bragg, North Carolina.

10. A Retirement Points Accounting Summary shows that the applicant's normal retirement year would have ended on 6 February 1988. When he was discharged on 21 August 1987 he had earned a total of 54 retirement points, 11 of which were membership points.

11. Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details and Transfers) Chapter 7 (Removal from Active Status), as in effect at that time, provided in paragraph 7-5 for the removal of officers who fail to complete required training, including failure to complete C&GSC within 3 years of promotion to LTC. However, Paragraph 7-12m, provided for a waiver of failure to complete C&GSC within 3 years when such failure was due to justifiable reasons.

12. The applicant acknowledged in a telephone conversation with the analyst that the situation was his responsibility because he should have requested a waiver. However, because he had completed his active duty training and already earned 50 points during his final year, he thought he had completed 20 qualifying years. He had no one to tell him differently.

13. There is no statutory or regulatory right to a formal hearing. The Board receives over 13,000 applications each year, but normally grants fewer than fifteen formal hearings a year. Formal hearings are granted only when the Board determines that a case is so complex, the records so incomplete, or that only sworn testimony can provide the necessary information.

CONCLUSIONS:

1. The applicant was promoted to first lieutenant while in a deferred active duty status. He would not have been promoted had he been in the Inactive Reserve. However, during this period, he would have earned only the 15 membership points per annum, and not the required 50 points per year. Therefore, he would not have been credited with a qualifying year for any of this time. The issue is moot because the time is not creditable for retirement purposes.

2. The Board is unable to determine that the submitted pamphlet RCPAC Pamphlet 140-3 dated June 1973 was still effective in 1987 when the applicant was transferred to the Retired Reserve. However the paragraph cited is irrelevant because "active Federal service" means "active duty."

3. The applicant had spent his career as a mobilization designee. He did not have the benefit of either formal training or informal discussion into the qualification requirements for pay at age 60 that members of troop program units have. Furthermore, considering that he had already earned more that the 50 required points during his last year, his failure to appreciate that he needed to be associated with the active reserve for another 3 months and 10 days to qualify for Retired pay at age 60 is understandable.

4. His failure to complete C&GSC within 3 years of promotion to LTC was subject to waiver. The Board concludes that, had the applicant been properly counseled he would have requested a waiver. Considering all the aspects of the case; but especially, that the applicant that he had completed 50 percent of C&GSC and had not required a waiver for his promotion to lieutenant colonel; that he had served consecutive qualifying years from the time entered active duty; that he had been making a real contribution the USAR by teaching classes during his annual active duty training periods, including during that last retirement year; and that he lacked only 3 months and 10 days of membership to qualify for retired pay at age 60. As a matter of fairness a waiver of the requirement, to allow him to so qualify, seems appropriate.

5. Additionally, 19 years, 8 months and 20 days of useful service ought not to be so casually disregarded. As a matter of equity the applicant should be granted the requested relief.

6. The date of transfer to the Retired Reserve should be corrected to 7 February 1988. He should be credited with an additional 4 points, representing the remainder of the membership points for that final year and he should be authorized Reserve retired pay at age 60.

7. In view of the foregoing findings and conclusions, the applicant's records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by:

         a. voiding the 21 August 1987 transfer of the individual concerned to the Retired Reserve;

b. showing that he continued to serve through 6 February 1988 and that he earned a total of 58 retirements points during that retirement year;

c. issuing a letter of entitlement to Reserve Retirement at age 60; and

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d. showing he was transferred to the Retired Reserve on 7 February 1988.

BOARD VOTE:

_MHM___ __WDP__ __FCJ__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _ Melvin H. Meyer_______
                  CHAIRPERSON

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INDEX

CASE ID	AR2002074087
SUFFIX
RECON
DATE BOARDED	20031021
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.