PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 21 OCTOBER 2003
         DOCKET NUMBER: AR2002079866


         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. 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 that his record reflect that he has 20 qualifying years of service for retired pay at age 60.

3. The applicant states that he was retained in the Army Reserve in order to complete 20 years of creditable service for retired pay.

4. The applicant’s military records show that he entered military service in 1958. He served on active duty from October 1958 as a Regular Army officer until his discharge in September 1973. A 3 March 1998 chronological statement of retirement points shows that he continued his military service in the Army Reserve until March 1988. That statement also shows that his date of birth is 27 August 1936.

5. On 22 May 1988 the Army Reserve Components Personnel and Administration Center informed the applicant that he was being retained until 21 April 1988 in order to complete 20 years of [qualifying] service.

6. In an undated letter [perhaps early 1988] the Army Reserve Personnel Center acknowledged that he had been granted an exception to policy in order to be retained in the active Reserve to complete 20 years service creditable for retired pay purposes; and stated that since he had now completed the service, his removal from the active Reserve was mandatory by law.

7. On 22 February 1988 the applicant requested transfer to the Retired Reserve. He was transferred to the Retired Reserve on 24 March 1988. The reason for his transfer is shown as non-selection for promotion.

8. The applicant's records show two retirement points' statements, one as indicated above, and the second with a "date record change" of 1 February 2000. Both show that the applicant had 20 qualifying years of service; however, also show that the last eight qualifying years were not in a Reserve component. He had only five of the required eight qualifying years in a Reserve component.

9. On 13 September 2002 the Army Reserve Personnel Command advised the applicant that the 1988 letter (referred to above) was the key to his eligibility for retirement, and that document was not previously found in the record reviews. Although it was determined that he was entitled to additional time in order to attain the qualifying years for retirement and that he was given that time, a computer-generated report removed him from an active status before being able to meet the requirements for retirement – the last eight qualifying years in a Reserve component. That command opined that he should be granted retirement based on the fact that the Army erroneously released him from an active status based on its misinterpretation of an automated report. The command recommended that he apply to this Board for relief.

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10. Army Regulation 135-180 implements statutory authorities governing the granting of retired pay to soldiers and former Reserve Component soldiers. 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. Army Regulation 135-155 prescribes the policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard and the Army Reserve. Paragraph 4-29 of that regulation states that an officer whose removal from active Reserve status is required by law for failure to be selected for promotion must be removed within the prescribed time limits. Those time limits can be extended or suspended only as authorized by law (Army Regulation 140-10, chapter 7).

12. Chapter 7 of Army Regulation 140-10 pertains to removal of soldiers from an active status. Paragraph 7-4 states, in effect, that officers who are nonselected for promotion after second consideration will be removed from an active status (discharged or transferred to the Retired Reserve). Paragraph 7-12 of that regulation provides an exception to the above rule, and states in pertinent part, that officers having 18 or 19 years of qualifying Federal service for retired pay will not be removed without their consent. Officers who meet this criteria on the date removal is required will be retained to complete 20 years. Retained officers will be informed they must notify the appropriate authority when the service is completed. Retention is authorized until the earlier of these dates: (1) the date of which 20 years of qualifying Federal service for retired pay is completed, or (2) three years from required removal date. This applies to officers having at least 18 but less than 19 years of qualifying service; or (3) two years from required removal date. This applies to officers having at least 19 but less than 20 years of qualifying service.

13. Army Regulation 135-180 allows Reserve component soldiers and former soldiers who have received notification of their eligibility for retired pay at age 60, to participate in the Reserve Component Survivors Benefit Plan. Soldiers who do not elect to participate at that time, may elect coverage under the plan with application for retired pay at age 60.

CONCLUSIONS:

1. The evidence suggests that the applicant was a two time non-select for promotion who did not have 20 qualifying years of service for retirement. He was afforded the opportunity to obtain those years in accordance with the provisions of the above-cited regulation – that is, he was being retained until April 1988 to obtain three qualifying years of service.

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2. He did not obtain those three years of qualifying service prior to his transfer to the Retired Reserve in late March of 1988. Nonetheless, according to his retirement point history, had he done so, he still would not have had his last eight years of qualifying service as a Reserve component member.

3. However, the Army clearly made a commitment to him and even informed him in 1988 that he did have the necessary creditable years of service for retired pay purposes. The Army Personnel Command opined that he was prematurely removed from an active status before he obtained the necessary qualifying years of service, and that he should be granted retirement from the Army.

4. The Board agrees. Consequently, the applicant's records should be corrected to show that he has 20 qualifying years of service for retired pay at age 60 in accordance with the provisions of Title 10 United States Code, Chapter 1223. Retirement points from years in excess of 50 points should be redistributed to retirement years ending on 30 August 1980, 30 August 1984, and 30 August 1985. Furthermore, the applicant should be afforded the opportunity to participate in the Reserve Component Survivor Benefit plan.

5. The applicant's records show that he was 60 years old on 27 August 1996. He should receive retroactive retired pay from that date.

6. 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:

a. redistributing retirement points from years in excess of 50 points to retirement years ending on 30 August 1980, 30 August 1984, and 30 August 1985;

b. showing that the individual concerned has 20 qualifying years of service for retired pay at age 60;

c. granting the applicant retroactive retired pay from the date that he became 60 years old; and

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d. affording the applicant the opportunity to participate in the Reserve Component Survivor Benefit Plan.

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	AR2002079866
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031021
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.