PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 3 April 2003
         DOCKET NUMBER: AR2002076641


         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:

Mr. Samuel A. Crumpler		Chairperson
Mr. Patrick H. McGann		Member
Mr. Roger W. Able		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 correct his records to show that he was awarded four additional membership points in the US Army Reserve (USAR) or that the Board declare his final year in the USAR as a good year or that he be recalled to active duty.

3. The applicant states that he was erroneously separated from the USAR early in 1985 and was denied retired pay in April 1998. He applied to the ABCMR for relief and was denied. He has spent 13 years and numerous attempts to get his statement of retirement points corrected. His statement of retirement points was not updated until after he applied for retirement. He later discovered an error in his mandatory removal date (MRD) and that his last year of service was a "bad year" and disqualified him for retired pay. He was later informed by a staff member of the Office of the Chief, Army Reserve (OCAR) who provided him with more information in 5 minutes that he was able to obtain from the Army Reserve Personnel Command (AR-PERSCOM). He also discovered that he had been administratively separated due to an MRD of 25 February 1985, 88 days early and short 4 retirement points in order to completed 20 years of qualifying service for retirement.

4. The Memorandum of Consideration (MOC) of the Board’s prior review of the case dated 20 December 2001 (AR2001061861) is incorporated herein by reference as if wholly set forth.

5. The Board originally concluded that the applicant was advised on 21 September 1976 that he did not qualify for retirement at age 60. The Board also concluded that he did not complete 20 qualifying years of Reserve service, did not serve his last 8 years as a Reserve Component soldier, and was not eligible for retired pay.

6. The applicant military records show that he was commissioned as a second lieutenant on 21 October 1959 in the Kentucky Army National Guard (KYARNG), with prior military service. He was ordered to active duty (AD) on 15 January 1962 and continued to serve until he was released from AD on 10 February 1974.

7. He was promoted to major (MAJ/0-4) effective 18 October 1973.
8. On 11 February 1974, he was transferred to the USAR Control Group (Reinforcement) where he continued to serve but failed to earn additional qualifying years for retirement.






9. The applicant was considered and not selected for promotion to lieutenant colonel by the 1981 Reserve Components Selection Board (RCSB). He was again considered but not selected by the 1982 RCSB which convened on 14 September 1982 and adjourned on 15 October 1982. The results were released on 29 October 1982 and approved by the Secretary of the Army on 13 December 1982. His established release date was 24 February 1983.

10. As a Reserve Component officer with over 19 years of qualifying service for retirement, he was granted two additional years service to obtain one additional year of qualifying service.

11. He continued to serve and earned 46 points in his final partial retirement year. He was credited with only 11 membership points of a possible 15 because he was 3 months short of a full year. He was transferred to the USAR Control Group (Retired) effective 24 February 1985 without entitlement to retired pay.

12. A copy of the applicant’s Chronological Statement of Retirement Points shows that he had completed 19 years, 9 months and 2 days of qualifying service for retirement purposes. It also shows that his first 7 years of qualifying service was served in a Reserve Component.

13. The applicant provided a copy of memorandum, dated 29 May 2002, from OCAR, in response to his recent letter requesting that he be returned to an active status in order to qualify for nonregular service retirement pay. OCAR stated that current policy did not allow for an individual to return to an active status after attaining 60 years of age and his records indicated that he may have been erroneously removed from an active status. He was credited with 19 years, 9 months, and 2 days of qualifying service on 24 February 1985. Under the provisions of Army Regulation 135-155, dated 1 November 1983, paragraph 4-29, the applicant should have been retained in an active status to completed the required 20 qualifying years, unless he requested removal from active status upon obtaining his second nonselection for promotion. He was denied relief by the ABCMR based on a misinterpretation of Army Regulation 135-180, 22 August 1974. This regulation required an individual to serve the last 8 years of their qualifying service as a Reserve Component soldier, the last 8 years need not be consecutive. Based on this evidence, OCAR recommend that he re-petition the ABCMR for relief.

14. Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. The regulation provides that mandatory selection boards will be convened each year to consider Reserve Component officers in an active status for promotion to captain through lieutenant colonel. The regulation provides that in order to be qualified for promotion to lieutenant colonel an individual must have completed 50 percent of the CGSC, 7 years of time in grade (TIG) as a major, and an officer advanced course (OAC) on or before the convening date of the respective promotion board. There are no waiver provisions provided in the regulation.

15. Paragraph 4-29, of Army Regulation 135-155, in effect at that time, pertained to retention in an active status. It stated that members would be removed from an active status within the prescribed time limits required by law. Members credited with 19 years or more but less than 20 years of service would be allowed two additional years of service to obtain one additional year of qualifying service.

16. In pertinent part, Army Regulation 135-155 states that an officer who twice fails to be selected for promotion to captain, major, or lieutenant colonel will not again be considered for promotion and will be removed from an active status.

17. Army Regulation 135-175 provides policy, criteria, and procedures governing the separation of officers of the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR), except for officers serving on active duty or active duty training exceeding 90 days. Paragraph 4-4 pertains to the removal from an active status. It states, in pertinent part, that officers in the grade of first lieutenant, captain, or major who completed their statutory military obligation, will be discharged for failure to be selected for promotion after second consideration by a DA Reserve Components Selection Board.

18. Army Regulation 140-10, in effect at the time, set 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 7-4 requires removal of officers who are twice not selected for promotion to chief warrant officer three, chief warrant officer four, captain, major,
or lieutenant colonel.

19. Army Regulation 135-180 prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, United States Code, Chapter 67, sections 1331 to 1337. It indicated, in pertinent part, that to be eligible for retired pay, an individual need not 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. The last 8 years of qualifying service need not be the last 8 years of military service, nor do they have to be continuous.

20. 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.
CONCLUSIONS:

1. The applicant was properly considered for promotion by the 1981 and 1982 RCSB’s but was not selected and was provided with an original release date of 24 February 1983. He was allowed two additional years to obtain one additional year of qualifying service until his transfer to the Retired Reserve effective 24 February 1985 based on his nonselection for promotion.

2. The Board notes that OCAR informed the applicant that current policy did not allow for an individual to return to an active status after attaining 60 years of age. OCAR also noted that the applicant had possibly been erroneously removed from an active status.

3. A review of the applicant's retirement point summary shows that he had completed over 19 years of qualifying service for retirement purposes. However, his separation of 24 February 1985 allowed him to be credited with only a total of 11 membership points for a total of 46 retirement points for his final partial year of service. He failed to earn 50 or more retirement points for a 20^th qualifying year.

4. Notwithstanding the earlier denial by this Board, it would now be appropriate, and in the interest of justice, to award the applicant 4 additional membership points and show his removal from an active status as 25 May 1985 as an exception to policy. The applicant would now have a total of 50 retirement points for his RYE of 25 May 1985. This RYE would be considered as the 8^th qualifying year of Reserve Component service for a total of 20 years of qualifying service for retired pay. The applicant would now be entitled to retired pay benefits.

5. In view of the foregoing findings and conclusions, 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:

a. by revoking Orders Number C-02-911318, dated 19 February 1985;

b. by showing his removal from an active status occurred on 25 May 1985;

c. by showing that he was granted 4 additional membership points for a total of 50 retirement points for his RYE of 25 May 1985, showing that retirement year as qualifying for retirement;

d. by reissuing orders showing that he was transferred to the Retired Reserve effective 25 May 1985; and

e. by paying him retired pay effective the date of the approval of these Proceedings since he was not earlier entitled to said pay.

2. That upon completion of the administrative action required by Paragraph 1a, b, and c above, that AR-PERSCOM recalculate the retirement points of the individual concerned and issue him a corrected Chronological Statement of Retirement Points.

BOARD VOTE:

__sc___ __pm____ __ra____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Samuel A. Crumpler___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002076641
SUFFIX
RECON	Old case # AR2001061861
DATE BOARDED	20030403
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19850224
DISCHARGE AUTHORITY	AR 140-10
DISCHARGE REASON
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1.	332
2.
3.
4.
5.
6.