MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 23 September 2003
         DOCKET NUMBER: AR2002082774


         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Patrick H. McGann		Member
Mr. Arthur A. Omartian		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)

APPLICANT REQUESTS: Reconsideration of his earlier appeal to correct his military records by showing that he completed 20 qualifying years of service for retirement pay under the provisions of Title 10, Unites States (US) Code 1331-1337.

APPLICANT STATES: In effect, that he was released early and should be entitled to retirement pay; however, he only completed 19 years, 11 months, and 18 days of qualifying service for retirement purposes.

COUNSEL CONTENDS: Disabled American Veterans (DAV), as counsel for the applicant, contends that the applicant should be given the opportunity to receive retired pay. He served 19 years, 11 months, and 18 days of combined Reserve and active duty service and was separated prior to retirement due to no fault of his own and is now not entitled to longevity retirement. He served continually in a Reserve component for over 8 years, which meets and exceeds the requirements for Reserve retirement eligibility. He served and performed in several combat related Reserve infantry units, had considerable leadership experience, and participated in several combat theaters. His main contention is that he be granted military retirement for which he is entitled to for his service. He was separated 12 days prior to reaching his anniversary retirement. He was able and willing to complete his final tour of duty and was intentionally separated 12 days prior to completing 20 years of qualifying service for retired pay at age 60.

Counsel requests that an equitable standard be applied as well as equity in treatment in seeking the Boards' approval to afford him the opportunity to receive retired pay for his Reserve status. Counsel feels that this is such a severe mistake and to allow this negative action to continue to manifest the applicant's life is an injustice and should be corrected. Counsel requested that the Board's be careful and sympathetic in considering all evidence of record to render a fair and impartial decision.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case AC83-09718 on 5 September 1984.

The applicant’s contentions are new arguments that require Board consideration.

The Board originally concluded that the evidence of record did not show, nor did the applicant provide documentation to show, that he completed 20 years of qualifying service for retirement or that the last 8-year period of his service was served in a Reserve Component, a requisite under the law. This conclusion was supported by information furnished by the Reserve Component Personnel and Administration Center (RCPAC).
The applicant was inducted on 25 November 1942. He served with the 413^th Infantry unit in the European-African-Middle Eastern Theater Eastern. He was honorably discharged on 15 December 1945. He enlisted in the Enlisted Reserve Corps (ERC) and was honorably discharged on 30 June 1950. He reenlisted in the ERC on 19 January 1951 and continued to serve until 29 November 1952. He had no military status from 2 December 1952 to 11 January 1953.

On 12 January 1953, he reenlisted in the ERC and continued to serve until released from active duty on 14 November 1954. He reenlisted in the ERC on 15 November 1954 and continued to serve until honorably discharged on 2 January 1955. He reenlisted in the Regular Army on 3 January 1955 and continued to serve through a series of continuous reenlistments. He was honorably discharged on 10 July 1964, due to early release of overseas returnees. He was not transferred to the Army Reserve. His DD Form 214, dated 10 July 1964, shows that he enlisted on 21 July 1961 for a period of 3 years with an established expiration of term of service (ETS) of 20 July 1964. His records show that he served in several leadership positions, was awarded several awards, and completed several oversea tours.

The applicant's records contain a letter from the Director, Retired Activities, RCPAC, which is undated. This letter pertains to the applicant's DD Form 108 (Application for Retired Pay). The applicant was informed that to be eligible for retired pay at age 60 under Title 10, US Code 1331-1337, a member must have completed a minimum of 20 years qualifying service, the last 8 years of which must have been served in a Reserve Component. The last 8 years of the applicant's service were in the Regular Army. Under current law, the applicant's service did not fulfill the requirements for entitlement to retirement benefits.

The applicant’s records contain a copy of his Chronological Statement of Retirement Points, dated 22 October 1977, which shows that he had completed 21 years, 6 months, and 7 days of total service and only 19 years, 11 months, and 18 days of qualifying service for retirement purposes. It also shows that his last 8 years were in the Regular Army.

Army Regulation 635-205, in effect at the time, set forth the basic authority for the separation of enlisted personnel for convenience of the government. Paragraph 7 governs separation of enlisted personnel with less than 3 months remaining to serve. Paragraph 7(a) pertains to overseas returnees. It states, in pertinent part, that commanders are authorized to order separation for the convenience of the government of enlisted personnel for return to the US.




Enlisted members of the Regular Army and USAR, who upon arrival have less than 3 months remaining before expiration of term of service (ETS) will be discharged for the convenience of the government, released from active duty, and returned to their former National Guard or Army Reserve status, or released from active duty and transferred to the USAR.

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. This regulation specifies, in pertinent part, that to be eligible for retired pay an individual must have attained age 60 and completed a minimum of 20 years of qualifying service and that, subsequent to 1 July 1949, qualifying service is granted for each year of service an individual earns 50 or more retirement points.

Sections 12731 through 12739 of Title 10, USC, 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. This law further requires that the last 8 years of qualifying service must in a Reserve Component.

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.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

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

1. The evidence of record shows that he had completed 21 years, 6 months, and 7 days of total service and 19 years, 11 months, and 18 days of qualifying service for retirement purposes. His last 8 years were in the Regular Army from which he was discharged 10 days prior to his ETS and not transferred to the Army Reserve. Under current law his service does not fulfill the requirements for entitlement to retirement benefits.

2. The Board's original decision clearly stated that the evidence of record did not show, nor did the applicant provide documentation to show, that he completed 20 years of qualifying service for retirement or that the last 8-year period of his service was served in a Reserve Component, a requisite under law. This conclusion was supported by information furnished by RCPAC.

3. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

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

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__jp___ ___pm___ ___ao_____ DENY APPLICATION




         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002082774
SUFFIX
RECON	AC83-09781
DATE BOARDED	20030923
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19640710
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1.	338
2.
3.
4.
5.
6.