PROCEEDINGS


         IN THE CASE OF:
        


         BOARD DATE: 14 January 2003
         DOCKET NUMBER: AR2002074447


         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Ms. Mae M. Bullock		Member
Ms. Jennifer L. Prater		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, in effect, correction of his records to show that he was granted 3 additional points toward his qualifying service for early Reserve retirement.

3. The applicant states that he was never credited with 3 additional points, as promised and agreed, for his extra time in preparing for weekend drill. The time spent was on Fridays before drill when he purchased groceries for the weekend. He now feels that that he should have been credited with 6 additional points for the retirement year ending (RYE) 6 December 1995. In support of his application, he submits several documents from his military personnel records, a letter from a Member of Congress, and two affidavits.

4. The applicant submits an additional statement to his application. He states that he has been denied retirement benefits because he is 3 retirement points short for his RYE of 6 December 1995. He contends that he does have more than enough points for that year due to an oral agreement. A meeting was held with all platoon sergeants to inform them that funds were short. The meeting was conducted by his unit commander and first sergeant who informed them that they would not be paid for the Fridays before drill, but would be awarded points for the extra time spent preparing for the weekend drill. Prior to the meeting, all personnel were paid for this time and received points for the Friday preparations. He is not concerned about the pay that was lost; however, he is concerned about being awarded the points that he should have received.

5. The applicant’s military records show he was born on 10 August 1942. He enlisted in the Iowa Army National Guard (IAARNG) on 1 September 1959. He continued to serve in the IAARNG through a series of continuous reenlistments.

6. A memorandum was prepared by the commander, of Company D, 109^th Aviation, which is undated, Subject: Discharge for Medical Disqualification. The
commander stated that he was initiating action to separate the applicant from the IAARNG and Reserve of the Army. The reason for his proposed action was the applicant's medical disqualification under the provisions of Army Regulation
40-501, paragraph 3-11d. The applicant had the right to make a statement in his own behalf and request a medical retention waiver which required National Guard Bureau (NGB) approval. However, no favorable recommendation would be made from this command on a medical retention waiver due to his unsatisfactory participation at their unit training assemblies. He was recommended for an honorable discharge with acknowledgement or reply from the IAARNG Adjutant General (AG).





7. On 1 May 1996, the applicant was honorably discharged from the IAARNG and as a Reserve of the Army under the provisions of National Guard Regulation (NGR) 600-200, paragraph 8-26y, due to a medical disqualification.

8. On 13 December 1999, the IAARNG, Office of the AG responded to the applicant's request for assistance to determine his eligibility for early Reserve retirement because of disability. The applicant was separated from the IAARNG with 14 years of good service. His last year of service was 3 points short of the required 50 points to establish a good year for retirement. The early Reserve retirement program requires a minimum of 15 good years of service to qualify. The memorandum also stated that the applicant may appeal to this Board for relief.

9. The applicant provided a copy of a letter written by the IAARNG Deputy Inspector General (IG) to a Member of Congress, dated 31 July 2001. This letter was written in response to a request on behalf of the applicant who was asking for assistance regarding his shortage of 3 retirement points to qualify for military retirement. The applicant was separated from the IAARNG with 14 "good" years of service. A good year consists of a service member earning 50 points during an anniversary year (starting on the date of enlistment). If the applicant had completed 15 good years he may have qualified for the early Reserve retirement program that required a minimum of 15 good years of service. Points are earned by attending scheduled weekend military training, Annual Training, or other military duty in an official status. The applicant's case was reviewed in the Fall of 1999 and a reply was prepared on 13 December 1999. They were unable to document or confirm his attendance at any military training during that period of time. If they were able to verify an additional training period they still would not be able to go back and update his records and submit the applicant for early retirement. The applicant was instructed to apply to this Board for relief.

10. The applicant provided copies of two affidavits, dated 15 March 2002, which were prepared by him and another platoon sergeant. They attested to the fact that a meeting was held to discuss the shortage of funds and that they would be awarded points for the extra time spent preparing for the weekend drill. It also stated that this oral agreement was made and should be acknowledged.

11. The applicant’s records contain a copy of his Chronological Statement of Retirement Points, dated 18 December 2002, which shows that he had completed 14 years of qualifying service for retirement purposes. This statement shows that he earned 47 creditable points for the year 7 December 1994 to 6 December 1995. His statement also shows that he has over 14 years recording in excess of 60 points or more.



12. The Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), indicates, in pertinent part, that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and, (3) served the last 8-years of his or her qualifying service as a Reserve component soldier.

13. Army Regulation 135-180 also states in paragraph 2-3, that a 20-Year Letter will be issued to the Reserve component soldier within 1 year after they complete 20 years of qualifying service for retirement. This letter will be issued by the Chief of the National Guard Bureau for Army National Guard soldiers and by the Commander of the Army Reserve Personnel Command (AR-PERSCOM) for
USAR soldiers. The letter, once issued, may not be withdrawn or revoked. The soldier may voluntarily elect to transfer to the Retired Reserve or be discharged from the Army.

14. Army Regulation 135-178, in effect at the time, established the policies, standards, and procedures governing the administrative separation of enlisted soldiers from the Reserve Components. Paragraph 1-3 states, in pertinent part,
that orders discharging a soldier would not be revoked or the effective date changed after the effective date of discharge unless there was evidence of
manifest error or fraud. After the effective date of discharge, orders could be amended by the separation authority only to correct manifest errors such as the wrong character of service or to correct administrative errors such as errors concerning rank, social security number, or misspelled name.

15. 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.

16. Sections 12731 through 12739 of Title 10, United States (US) 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. 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.

17. 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.

18. Title 10, US Code, section 12731 allows Reserve Component soldiers who were involuntarily separated because of medical unfitness between 1 October 1991 and 31 December 2001 to elect transfer to the Retired Reserve for Reserve retirement pay at age 60 based on a minimum of 15 years of qualifying service toward Reserve Component retirement. The individual must also have met the requirement of having performed the last 6 years of qualifying service in the Reserve Components as outlined in Title 10, United States Code, section 1331(a) and the new subsection (f).

19. On 26 April 1995, the NGB publish a memorandum, Subject: Early Reserve Retirement Eligibility for Disabled Members of the ARNG Information and Implementation Instructions. Section 8 pertained to processing of eligible members. Item 4 covered Notification of Eligibility for Retired Pay at Age 60 (Fifteen Year Letter). It stated that an original 15-Year Letter would be sent to
the soldier through his last unit of assignment. It would be the unit's responsibility to ensure that the soldier initiates a DD Form 2656 (Data for Payment of Retired Personnel, which includes the Survivor Benefit Plan (SBP) Election Certificate on the reverse side) (former DD Form 1883) in accordance with instructions from the Personnel Service Branch. States should utilize currently required documentation to determine eligibility for retired pay as outlined in Army Regulation 135-180 for a 15-Year Letter and to process retirement related benefits.

CONCLUSIONS:

1. The evidence of record shows that the applicant was honorably discharged from the IAARNG under the provisions of NGR 600-200, paragraph 8-26y due to a medical disqualification.

2. The applicant's retirement point summary, dated 18 December 2002, shows that he had completed 14 years of qualifying service for retirement purposes. The evidence of record shows that the applicant failed to earn 50 retirement points or more during his RYE of 6 December 1995; however, he did have 47 retirement points.

3. The applicant has sufficient excess retirement points that can be redistributed to his unqualifying retirement year ending on 6 December 1995. This redistribution would not involve awarding additional retirement points, entitlement to additional drill pay, or adding an additional period of service.




4. It would now be in the interest of justice, based on the applicant's long and faithful service, to redistribute the necessary excess retirement points to his RYE of 6 December 1995, to show that retirement year as qualifying for retired pay.

5. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case for the individual concerned be corrected by:

a. showing that he was discharged from the IAARNG effective 1 May 1996 due to medical disqualification and transferred to the Retired Reserve;

b. redistributing the necessary excess retirement points to his RYE of 6 December 1995, and showing that retirement year as qualifying for retirement; and
c. paying him retired pay effective the date of the approval of these Proceedings.

2. That upon completion of the administrative action required by Paragraph 1a through 1b, above, that the IAARNG recalculate the retirement points of the individual concerned, issue him a corrected Chronological Statement of Retirement Points and issue him an Early Retirement Letter certifying eligibility effective 30 April 1996 for non-regular retired benefits at age 60.

BOARD VOTE:

________ ________ ________ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2002074447
SUFFIX
RECON
DATE BOARDED	20030114
TYPE OF DISCHARGE
DATE OF DISCHARGE	19960501
DISCHARGE AUTHORITY	AR 135-178/NGR 600-200, PARA 8-26Y
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	334
2.
3.
4.
5.
6.