MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 19 JUNE 2003
         DOCKET NUMBER: AR2002083136

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Lana E. McGlynn		Member
Mr. William D. Powers		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, the applicant requests that his records be corrected to show that he had 20 qualifying years of service for retirement pay at age 60.

APPLICANT STATES: That he had 14 years of active service and 6 years of inactive service. The 6 years of inactive service in the Marine Corps Reserve prior to his 14 years of active military service should entitle him to the same retirement benefits and pay as one who served 6 years in the Reserve after 14 years of active military service.

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

The applicant served on active duty with the Marine Corps from 27 September 1976 to 22 February 1977, and in the Marine Corps Reserve from 23 February 1977 to 25 November 1983. He served on active duty in the Marine Corps from 26 November 1983 until his honorable discharge in the rank of sergeant on 21 October 1988.

On 25 January 1989 the applicant enlisted in the Army Reserve delayed entry program (DEP) for 4 years. He was discharged from that program upon his enlistment in the Regular Army for 4 years on 2 March 1989. He remained on continuous active service until his discharge in 1998.

The applicant's Army service has been commendable, as evidenced by his 6 awards of the Army Commendation Medal and his 7 awards of the Army Achievement Medal shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty). He has completed numerous military courses and was on the commandant's list for both the basic and advanced NCO courses. A review of his NCO evaluation reports show that his rating officials considered him an outstanding soldier. The applicant served in Korea and served in Saudi Arabia during Operation Desert Storm.

The applicant reenlisted in the Army for 4 years on 30 September 1992. On 16 March 1995 he extended his enlistment for 19 months in order to have sufficient service remaining for a "with dependents" tour in Hawaii. His new ETS (expiration of term of service) was 29 April 1998.

In March 1995 he was assigned to Tripler Army Medical Center in Hawaii. He completed ANCOC (Advanced NCO Course) in March 1996. He was promoted to sergeant first class on 1 December 1996.

On 23 July 1997 the applicant completed a DA Form 4991-R (Declination of Continued Service Statement) (DCCS). That form shows that the applicant had received assignment instructions to the Continental United States, and had to have a minimum of 12 months remaining to ETS from the date of arrival at his new duty station in order to comply with the operational commitment. The declination shows that the applicant had been advised as to the options available to acquire sufficient remaining service to satisfy the commitment, but had refused to take necessary action to meet the length-of-service requirement. The applicant signed the form, acknowledging that he had been counseled concerning action required by him to satisfy the requirement, and regarding his refusal to extend his enlistment or reenlist to comply with the commitment.

The applicant was discharged at Fort Shafter, Hawaii on 29 April 1998. He had over 14 years of active service and over 6 years of inactive service.

Army Regulation 601-280 provides the criteria for the Army retention program and states in pertinent part that soldiers having 4 or more years service for pay purposes at ETS must take action to meet service remaining requirements. Soldiers eligible, but refusing to take action to satisfy service remaining requirements will be denied further service through the DA Form 4991-R. Soldiers indicating a desire to refuse to take action to meet a service remaining requirement will be advised regarding the impact of the refusal. The servicing career counselor will initiate the DA Form 4991-R on soldiers still indicating a desire to refuse to take action. The commander/first sergeant will counsel the soldier, ensuring that the soldier fully understand that soldiers with a DCCS, among other restrictions, are prohibited from applying for reentry into the Regular Army for a period of at least 93 days if separated at normal ETS, and at least 2 years if voluntarily separated before ETS.

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. In the case of a person who completes the service requirements during the period beginning on 5 October 1994, and ending on 31 December 2001, the last six years of qualifying service must be as a member of the Reserve components.
a reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.

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 applicant declined to reenlist or extend his enlistment upon receiving reassignment orders. He completed a DCCS, requiring his discharge upon his ETS, which was proper.

2. There is no evidence, nor has the applicant submitted any, to show that his service in the Reserves was qualifying service as defined in the appropriate regulation. Nonetheless, the last 6 years of his service was not as a Reserve component soldier. He himself is so aware. The law is specific. The applicant has not provided any good reason to grant an exception to the rule.

3. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.

5. 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

__JNS __ __LEM _ __WDP__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002083136
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030619
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	136.00
2.
3.
4.
5.
6.