PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 10 June 2003
         DOCKET NUMBER: AR2002077570


         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. John T. Meixell		Member
Ms. Shirley Powell		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, that he be extended past his mandatory removal date (MRD) of 7 December 2002 to earn additional qualifying years of service for Reserve retirement.

3. The applicant states that he should be extended past his MRD as an exception to policy. After his separation from active duty, he was briefed concerning his 3-year commitment with the Army Reserve; however, his retention NCO did not brief him concerning his choices toward retirement. He is now approaching his MRD in December 2002 and has completed 5 years of service in the Reserve, for a total of 22 years. He received a copy of his Chronological Statement of Retirement Points and was seen by his retention NCO. He was informed that he had completed 20 years of qualifying service for retirement purposes. He later called the Army Reserve Personnel Command (AR-PERSCOM) to inquire about his retirement status and qualifications. He was informed by AR-PERSCOM that his retention NCO was wrong and that in order to qualify for Reserve retirement, he needed a minimum of 8 years in the Reserve. He later submitted his request as an exception to policy. In support of his application, he submits copies of his: ARPC Form 249-2-E (Chronological State of Retirement Points); DA Form 2-1 (Personnel Qualification Record); two DD Forms 214 (Certificate of Release or Discharge from Active Duty); four enlistment contracts; two memorandums; and a Summary Points Inquiry.

4. The applicant’s military records show he entered active duty on 12 May 1975, at the age of 32. His date of birth is 7 December 1942. The automated personnel data system shows his MRD as 7 December 2002. He was promoted to SFC/E-7 effective 1 March 1989.

5. He continued to serve through a series of continuous reenlistments until he was honorably separated from active duty in the pay grade of E-7 on 3 August 1992, under the provisions of Army Regulation 635-200, chapter 16, Early Release Program – Special Separation Benefit (SSB). He completed a total of 17 years, 2 months, and 22 days of creditable service. He was transferred to the USAR Control Group (Reinforcement). He received an SSB payment in the amount of $60, 273.54.

6. He enlisted in the USAR on 4 August 1992, for a period of 3 years and was honorably discharged on 27 June 1995. On 28 June 1995, he reenlisted in the USAR for a period of 6 years with an established expiration of term of service (ETS) of 27 June 2001.

7. The applicant provided a copy of his Chronological Statement of Retirement Points, dated 27 July 2001, which shows that he completed 21 years of qualifying service for retirement purposes. His statement dated 10 May 2002, shows that he completed 22 years of qualifying service.

8. The applicant provided a copy of a memorandum from the Director, Personnel Actions and Services, AR-PERSCOM, 31 October 2001, Subject: Extension Past Maximum Years of Age. This memorandum was in reply to the applicant's request for extension past his MRD. It noted that in accordance with Army Regulation 135-180, chapter 2, a Reserve soldier must have served the last 8-years in a Reserve Component (RC) and that enlisted soldiers would be discharge or transferred to the Retired Reserve no later than the last day of the month in which they reach age 60. Available information indicated that the applicant had completed 20 years of total service; however, only 3 years were qualifying for retired pay benefits at age 60. It indicated that there were no provisions whereby the Department of the Army must guarantee individuals that they would be retained in the USAR to complete 20 years of qualifying service for retirement. Approving the applicant's request to be retained beyond age 60 would create a precedence contrary to the Army Regulation which required soldiers to be removed on the last day of the month in which they reached age 60. The applicant was informed to apply to this Board for relief.

9. On 8 January 2003, the applicant was released from the USAR and was transferred to the Retired Reserve, effective 31 December 2002, due to his maximum age.

10. An updated Chronological Statement of Retirement Points was provided by the AR-PERSCOM on 30 April 2003. This statement shows that his last 10 years were in a RC and that he had completed 22 years of creditable service for Reserve Retirement. However, only five of those years were qualifying for retirement and all 5 years had over the required 50 points. His retirement year ending (RYE) of 31 December 2002 was 8 months and 21 days, which only required 30 points for a creditable period of service; however, he had attained 90 retirement points. It also shows that for his RYE of 10 April 1994, for his first year in the RC, he earned 30 of the required 50 points for a qualifying year.

11. 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 provides guidance on length of Reserve service. It states, in pertinent part, that the actual removal date will be the last day of the month in which the soldier reaches age 60.






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 (RC) soldier. The requirement to serve the last 8-years in a RC
has since been amended to the last 6-years.

13. 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.

14. 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 evidence of record shows the applicant completed 22 years of creditable service for Reserve Retirement but he only had 5 years of qualifying RC service. His RYE of 31 December 2002 was 8 months and 21 days, which only required 30 points for a creditable period of service. However, he had attained 90 retirements points for that RYE.

2. The applicant's statement of retirement points shows that he was credited with 30 retirement points for his RYE of 10 April 1994. The applicant has sufficient excess retirement points that can be redistributed to his unqualifying RYE of 10 April 1994. This distribution would not involve awarding additional retirement points, entitlement to additional drill pay, or adding an additional period of service.

3. It would now be in the interest of justice, and as an exception to policy, to redistribute 20 retirement points from his RYE of 31 December 2002, to his RYE of 10 April 1994, and showing that RYE as qualifying for retirement.

4. 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:

         a. by redistributing 20 retirement points from his RYE of 31 December 2002, to his RYE of 10 April 1994, and showing that RYE as qualifying for retirement;

b. by showing a total of 70 retirement points for his RYE of 31 December 2002; and

c. by showing that he is entitled to retired pay effective the date of the approved Board Proceeding less amounts required to be collected from his prior entitlement to SSB.

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

3. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__sc____ __jm____ __sp____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Samuel A. Crumpler____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002077570
SUFFIX
RECON
DATE BOARDED	20030610
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR 140-10
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	338
2.
3.
4.
5.
6.