PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 03 DECEMBER 2002
         DOCKET NUMBER: AR2002076722


         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. James E. Anderholm		Member
Ms. Charmane Collins		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. In effect, the applicant requests that her military records be corrected to show that she was retired under the provisions of 10 U.S.C., Section 12731a (Temporary special retirement qualification authority) so as to be eligible for Reserve retired pay at age 60.

3. The applicant states that she was incorrectly discharged. She should receive benefits. She was medically discharged in 1997. She has 17 years of service. She did not know that anything was wrong until she tried to get a commissary card.

4. The applicant’s military records show that she enlisted in the Army Reserve delayed entry program for 6 years on 29 October 1979. She was discharged from the Army Reserve upon her enlistment in the Regular Army for three years on 21 January 1980. She completed her three year enlistment on 23 January 1983 and was transferred to the Army Reserve Control Group (Reinforcement) to complete the remainder of her military service obligation. She had 3 years of active service and 2 days of lost time.

5. Her personnel qualification record shows that she was assigned to the 398^th Chemical Company, a Reserve troop program unit (TPU) in West Memphis, Arkansas on 5 March 1984.

6. A 5 December 1996 chronological statement of retirement points shows that the applicant had 11 years of qualifying service for retired pay at age 60, with the beginning date of her retirement year 29 October 1982 through 28 October 1996.
That statement failed to include her inactive service beginning on 29 October 1979 and her three years of active duty from 21 January 1980 through 23 January 1983.

7. A 3 May 1997 physical profile shows that the applicant was determined to be unfit for retention in the Army Reserve because of pulmonary dysfunction, sarcoidosis. She requested a waiver of her medical condition, requesting transfer to the Retired Reserve if the waiver was not approved. On 28 May 1997 the Army Reserve Personnel Center command surgeon determined that she was not qualified for retention in the Army Reserve, and in effect, disapproved her request for a waiver.

8. The applicant was reassigned to the Army Reserve Control Group (Retired) effective on 17 July 1997.

9. Army Regulation 140-185 provides the criteria for establishing or changing the retirement year (RY), and states that the retirement year once established will not change as long as the soldier has continuous service in an active status in a Reserve and/or regular component. That regulation also provides the criteria for awarding retirement points, and states in pertinent part, that personnel on active duty are awarded one point for each calendar day they serve on active duty.

10. Army Regulation 135-180 implements statutory authorities governing the granting of retired pay to soldiers and former Reserve Component soldiers. Paragraph 2-8 of that 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. 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 2-1 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.

11. That regulation provides for notification of retired pay eligibility to each Reserve Component soldier within one year after he or she has completed 20 years of qualifying service (“20 year letter”). It also provides provisions to allow Reserve Component soldiers the opportunity to participate in the Reserve Components Survivor Benefit Plan (RCSBP).

12. 10 U.S.C., Section12731a provides for temporary special retirement authority for members of the Selected Reserve who have completed at least 15 and less than 20 years of service during the period beginning on 23 October 1992 and ending on 31 December 2001, and who have requested transfer to the Retired Reserve.

13. The Secretary concerned may provide the notification required by Section 12731(d) of 10 U.S.C. to a member who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability.

14. On 1 July 1996 the Chief of the Army Reserve provided instructions implementing the 15 year retirement authority stating that Selected Reserve soldiers who are subject to involuntary separation solely because they are unfit due to a medical disability, may elect early qualification for retired pay at age 60 provided they transfer to the Retired Reserve.

CONCLUSIONS:

1. The applicant had four qualifying years of service for retired pay at age 60, not documented on her chronological statement of retirement points – retirement years 29 October 1979 to 28 October 1980, 1980 to 1981, 1981 to 1982, and from 29 October 1982 (when she was still on active duty until her discharge on 23 January 1983) to 28 October 1983. She clearly earned 50 retirement points during each of those retirement years (RY). Those four years, added to the 11 documented years give her 15 years of qualifying service for retired pay at age 60.

2. Consequently, the applicant should have been transferred to the Retired Reserve on 17 July 1997 with eligibility to receive retired pay at age 60 in accordance with the provisions of 10 U.S.C., Section 12731a. Therefore, she should also have received the required notification, in this case a 15 year letter, and have been afforded the opportunity to participate in the RCSBP.

3. In view of the foregoing, 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 showing that the applicant was transferred to the Retired Reserve on 17 July 1997 with eligibility to receive retired pay at age 60 in accordance with the provisions of 10 U.S.C., Section 12731a. The applicant should receive a notification of eligibility to receive retired pay (a 15 year letter), and should be afforded the opportunity to participate in the RCSBP.

BOARD VOTE:

__FNE __ __JEA___ __CC___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Fred N. Eichorn_______
                  CHAIRPERSON

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INDEX

CASE ID	AR2002076722
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021203
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	136.00
2.
3.
4.
5.
6.