MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 7 October 2003
                  DOCKET NUMBER: AR2002080625

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Vic Whitney		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Robert Duecaster		Member
Ms. Shirley Powell		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that his discharge be revoked and he be transferred to the Retired Reserve.

APPLICANT STATES: That he was transferred from his Reserve unit assignment for overstrength reasons and assigned to the Individual Ready Reserve (IRR). He had 18 years of service and should not have been transferred. He states that he has been trying to reenlist but without success. Now they tell him that he does not have enough time prior to his mandatory removal date (MRD) at age 60 to complete 20 years of qualifying service for retirement. He provides documents from his military records in support of his application.

COUNSEL CONTENDS: That the applicant has not been credited with all of his qualifying service. A review of his records shows that he should be credited with a total of 18 years of qualifying service for retirement.

EVIDENCE OF RECORD: The applicant's military records show:

His date of birth is 11 June 1943. He was inducted and entered active duty on 5 May 1965. After 1 year, 8 months, and 26 days active duty he was separated and transferred to the Army Reserve. There is no evidence of record that he participated in any military activities while assigned to the Army Reserve. He was discharged from the Army Reserve effective 4 May 1971 on completion of his statutory military obligation.

After a break in service, the applicant enlisted in the Army Reserve effective 28 October 1976. He continued to serve through a series of reenlistments. He was promoted to the pay grade of E-7 effective 18 March 1988. He was mobilized with his unit during Operation Desert Shield/Desert Storm from 4 February through 16 July 1991.

Effective 10 July 1992, the applicant reenlisted for 6 years with an expiration of term of service of 9 July 1998. Effective 7 November 1992, he was transferred from his unit to the IRR for the stated reason of "overstrength".

The applicant provides a copy of his Chronological Statement of Retirement Points dated 15 March 1994. This form shows that he was credited with 16 years of qualifying service for retirement and over 23 years of total service for longevity. This form did not show his 1 year, 8 months, and 26 days of prior active duty. The back of the form states that retired pay is granted to soldiers who have completed 20 years of qualifying service for retirement and attain the age of 60. The form also advises the soldier to check the statement carefully and how to submit information for corrections.


Effective 14 July 1998 the applicant was discharged from the Army Reserve based on the expiration of his term of service (ETS) at over 55 years of age. There is no evidence of record, or information provided by the applicant, to show that he attempted to reenlist prior to his ETS or that he was denied reenlistment by competent authority. A recent copy of his retirement points shows that he failed to earn even one additional year of qualifying service for retirement while assigned to the IRR. He is now credited with 17 years, 8 months and 26 days of qualifying service for retirement including his prior active duty service.

His records show that he served a total of over 9 years of service in the IRR and none of those years were qualifying years for retirement. In the processing of this case an advisory opinion was provided by the Army Reserve Personnel Command. The opinion notes that the applicant is beyond the date of reenlistment where he can achieve 20 years of qualifying service for retirement prior to his MRD at age 60. The opinion was provided to the applicant for possible rebuttal but he failed to respond in over 5 months.

Army Regulation 140-111, in effect at the time, provided the policy for reenlistment and extensions of enlistments of Army Reserve soldiers assigned to the IRR. Table 2-5 provides that a waiver may be granted for an Army Reserve soldier between the ages of 55 through 59 to reenlist for the number of years, months, and days needed to complete 20 years of qualifying service for retirement before reaching age 60. A soldier who is unable to complete 20 years of qualifying service for retirement prior to reaching age 60 has a nonwaivable disqualification.

Army Regulation 135-178 provides for the separation of enlisted soldiers. Chapter 11 states that the separation authority, on ETS, will discharge the soldier. It also states that a soldier will not be kept past his ETS without his consent or under other operation of law.

Army Regulation 135-180 provides the policy for the granting of retired pay to soldiers and former Reserve Component soldiers. It states, in pertinent part, that pay is granted after completion of 20 or more years of qualifying service and upon attainment of age 60.

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.




DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1. Notwithstanding that the applicant provided evidence that he had additional active duty service that had not been recorded prior to 1994, there is insufficient evidence of record, or provided by the applicant, that he completed or should be credited with 20 years of qualifying service for retired pay at age 60.

2. Based on the applicant's long years of Army Reserve service and his numerous reenlistments, he knew, or should have known, that he would be discharged on ETS if he failed to reenlist even as a member of the IRR.

3. The Board also notes that the applicant failed to take advantage of any opportunities during his more than 9 years in the IRR to earn retirement points for additional qualifying years of service for retirement.

4. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant and counsel have failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__fe____ ___rd___ ____sp __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002080625
SUFFIX
RECON
DATE BOARDED	20031007
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.