PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 16 September 2003
         DOCKET NUMBER: AR2003084890


         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. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		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, reconsideration of his earlier appeal to correct his military records by revoking his transfer to the Retired Reserve, reinstating him to an active status and awarding him sufficient credit to permit him to qualify for retired pay at age 60.

3. He states, in effect, that he performed clandestine intelligence operations for Intelligence and Security Command (INSCOM) for many years, including after his 1984 transfer to the Retired Reserve. He was always promised that he would be awarded sufficient retirement points to earn a qualifying year for each year in which he performed such activity. When he became aware that he would be non-selected for lieutenant colonel because he had not met the military education requirement, he was asked to keep working and promised a waiver, but this never happened. When he was inadvertently discharged he was promised he would be reinstated and he was. When he was transferred to the Retired Reserve he was again promised that he would receive a waiver and be
reconsidered for promotion.

4. In support of his request he provides a DA Form 1380 (Record of Individual Reserve Duty Training), signed by Mr. R____, of INSCOM which shows the applicant earned 50 points per annum for the 5 RYEs (Retirement Year[s] Ending) on 31 July 1985 through 31 July 1989.

5. The Memorandum of Consideration (MOC) of the Board’s 28 September
2000 review of the case (AR2000039586) is incorporated herein by reference as if wholly set forth.

6. The applicant’s current submission is substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. As such, it warrants Board consideration.

7. In conjunction with the original case is the applicant's seven-page description of his USAR service, including the period from between 1984 to 1989, after he had been transferred to the Retired Reserve. He relates that, because he did business in the Middle East, he was recruited as an intelligence operative by a unit at Fort Meade called the U.S. Army Environmental Group. He always had trouble getting his annual retirement points documented, but it eventually got done. He was shown Officer Evaluation Reports (OERs) but never allowed to keep them, although he did manage to copy one in 1983. He never received any pay, but he was provided with cash for expenses. Once this amounted to about $12,000 to open an office in Saudi Arabia. He was told he would receive a waiver of the military education requirement for promotion to lieutenant colonel because what he was doing was far more important than completing the course. Once, he returned to the United States to discover that he had been discharged. His intelligence handlers told him this was an oversight and that they would "take care of it" and continued to utilize his services. The same thing occurred after his discharge was rescinded and he was transferred to the Retired Reserve.
As late as 1988 or 1989 a new case officer visited him in Florida. This officer provided the paperwork for the applicant to apply for a re-appointment in the Civil Affairs Branch. He was to be assigned to Fort Bragg where the intelligence people could arrange to "borrow" him. Again, he was told to not worry about the fact that he had been forced into retirement because of non-promotion. His handlers would fix that. By the time he completed the application, which was to be delivered to the individual who had provided it, the USA Environmental Group had apparently ceased to exist and the telephone numbers the applicant had used had been disconnected. Finally, the applicant describes his decade
long effort to rectify his situation. He achieved virtually nothing until December 1998 when a Mr. R____ at the Total Army Personnel Command, Reserve Components (AR-PERSCOM) told him, "All I need is justification for one more year and you've got your 20."

8. In addition to information noted in the MOC, the applicant's military record shows he graduated from the United States Military Academy in 1963 and served on active duty through 7 January 1969. His service included duty with the Berlin Brigade as an intelligence officer and in Vietnam as a Vietnamese infantry unit advisor and as a Special Forces intelligence officer. He was released from active duty as a captain on 7 January 1969 and transferred to the USAR Control Group (Reinforcement). His awards include the Bronze Star Medal with "V" device, the Purple Heart, the Air Medal, the Army Commendation Medal 3^rd Award (two with "V" device) the Republic of Vietnam Gallantry Cross with Silver Star [cited by a division commander] and the Combat Infantryman Badge.

9. He was notified of his selection for the USAR Mobilization Designation program by a 16 July 1970 memorandum from the Adjutant General, USAR Administration Center, St Louis, Missouri. On 24 November 1970 that agency issued orders transferring the applicant to the USAR Control Group (Mobilization Designation).

10. A 17 May 1972 letter informed the applicant that he was ineligible to continue in the USAR because he had not earned the minimum number of points (27) necessary to retain his active status. In September 1972 he was informed that he was eligible to be extended for at least 1 year, commencing 1 April 1973.

11. A 9 May 1973 letter to the applicant states that he failed to earn the required 27 points per year necessary to remain in active status. The letter noted that an annual waiver could be granted only once. The applicant apparently requested a waiver. A 17 May 1973 (DA Form 2496) Disposition Form) notes that he had been granted a waiver for RYE ending 7 January 1972. An associated work-sheet notes that his officer evaluation reports (OERs) shows "Satisfactory" performance. [There are currently no OERs for this period in the available record.] His request for a waiver was approved on 23 May 1973. The applicant is now credited with earning 32 retirement points for the RYE 7 January 1973.

12. On 17 October 1975, the applicant was certified as a Foreign Area Officer (FAO) for the "Arab World." He was promoted to major on 6 January 1976.

13. A 1 April 1977 letter to the applicant states, in effect, that he failed to earn the required 27 points per year necessary to remain in active status. A "corrected copy" of his annual points statement, dated 28 March 1977, credits him with 79 points; a similar document, dated 29 March 1977 shows 90 points. A third, dated 8 August 1977, matches his current credit of 65 points.

14. The applicant was transferred to the Retired Reserve on 8 March 1984, based on his nonselection for promotion to lieutenant colonel under the criteria of the 1982 and 1983 Reserve Components Selection Boards.

15. Extensive correspondence in 1991 shows that the applicant sought answers to questions about his status. He sought reinstatement in the USAR or the Army National Guard so that he could obtain his 20 qualifying years for retired pay at age 60.

16. A 13 February 1996 memorandum from the AR-PERSCOM states that the applicant had 16 years, 9 months, and 20 days qualifying time for Retired Reserve pay at age 60. However, an attached ARPC Form 606-E (Record of Retirement Points) actually shows that the applicant has 17 qualifying years.

17. During the processing of this case a telephone conversation between Mr. R____ and the analyst revealed the Mr. R____, an INSCOM civilian employee, is assigned to AR-PERSCOM for liaison in dealing with cases such as this one. He reported that he searched the records at INSCOM and is convinced that the applicant had, in fact, performed significant service between 1984 and 1989 and that he should be awarded the points as shown on the DA Form 1380. He also reports that he knows some of the individuals that the applicant worked for. He acknowledged that this kind of situation is not uncommon. He relates that the attitude, within the intelligence community seems to be that operational necessity always outweighs paperwork requirements, especially USAR paperwork. Therefore, promises are made, with good intentions, but they cannot always be kept. He finds it completely believable that the applicant was told that he would be granted a waiver and continued in active USAR service. Mr. R____ also notes that the applicant never served in a traditional USAR Troop Program Unit (TPU) and thus did not benefit from an understanding of the USAR system that normally accrues to TPU members.

18. The report of telephone conversation was forwarded to the applicant for comment in accordance with the Army Review Board Agency prohibition of
exparte communications. He concurred by a facsimiled letter.

19. Title 10, United States Code (USC) section (§) 14506. provides that a reserve major of the Army, Air Force, and Marine Corps and a reserve lieutenant commander of the Navy, unless retained as provided in section 12646, 12686, 14701, or 14702 of this title, who has twice failed of selection to the next higher grade and whose name is not on a list of officers recommended for promotion shall be removed from the reserve active-status on the later of; the first day
of the month after the month in which the officer completes 20 years of commissioned service, or (the first day of the seventh month after the month in which the President approves the report of the board which considered the individual.)

20. Title 10, USC §12646 provides that reserve commissioned officers who are entitled to be credited with at least 18, but less than 19, years of service computed under section 12732 of this title, may not be discharged or transferred from an active status under chapter this title or chapter 21 of title 14, without his consent before the earlier of the following date; the date on which he is entitled to be credited with 20 years of service or the third anniversary of the date on which he would otherwise be discharged or transferred from an active status.

21. Sections 12731 through 12738 of Title 10, U.S. 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. The term “good years” is an unofficial term used to mean years, effective 1 July 1949, 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.
 
22. Title 10, USC, §12738(a) states that, after a person is granted retired pay under this chapter or is notified in accordance with section 12731(d) of this Title that the person has completed the years of service required for eligibility for retired pay under this chapter, the person’s eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service performed unless it resulted directly from the fraud or misrepresentation of the person. Section 12731(d) states that the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay under this chapter.
 
23. Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for 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.

24. 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.

25. Army Regulation 140-10 (Assignments, Details, Transfers and Attachments) paragraph 7-4 provides that the removal due to nonselection following the second consideration. Paragraph 7-12 of this regulation provides an exception for officers having 18 or 19 years of qualifying Federal service for retired pay. Such officers will not be removed without their consent. Retention is authorized for three or two years, as appropriate or until completion of 20 years.

26. Army Regulation 140-185, paragraph 3-3 provided the instructions to complete the DA form 1380. In part, the code for item 10c is “P” indicates that the member is entitled to pay and retirement points and “N” indicates retirement points credit only.

CONCLUSIONS:

1. The Board is convinced that the applicant performed military duties during the 1984–1989 period, but that he did so knowing that he had been transferred to the Retired Reserve before he earned his 20 qualifying years. The question remains, was his expectation that he would ultimately receive credit and thereby achieve 20 qualifying years, reasonable.

2. In light of all the available information, especially that supplied by Mr. R____; but also the contradictory and confusing information in the applicant's records, such as his receiving a one time only annual waiver on three consecutive years, his change of status from discharged to retired, four different retirement points total for the single RYE January 1977, and the fact that the people he worked for could deliver unusual benefits (such as the disbursement of cash); the Board concludes that his expectation was reasonable.

3. Considering that the worksheet for the applicant’s waiver request for RYE
7 January 1973 mentioned OERs it is reasonable to presume that he had performed duty even though the OERs are no longer available. Therefore, the Board concludes that the currently credited 32 points must be in error and that it would be appropriate to move 18 points from a year having excess retire points making RYE 7 January 1973 a qualifying year.

4. The Board notes that the DA Form 1380 provided by Mr. R_____ only shows 50 retirement points in column c. The Board is accepting this information as it is intended to be used, to establish participation and qualify the applicant for retired pay at age 60. The correct posting of these entries should be 50N (retirement point credit only – no pay due). The Board will apply the retirement points to the applicant’s retirement point account as necessary to ensure eligibility for retired pay and not beyond.

5. The applicant’s RYE 7 January 1984 shows that he has awarded 65 points; thereby establishing 17 years, 07 months, and 03 days. Based on the input from Mr. R_____ it is now appropriate to show that the applicant was retained to the end of RYE 7 January 1985 and that he had a total of 50 retirement points for that year; thereby establishing 18 years, 07 months, and 03 days.

6. This establishes has eligibility for retention for 3 years or until completion
of 20 years, whichever comes first. Based on this eligibility and the documentation provided by Mr. R_______ the RYE for 7 January 1986 and
7 January 1987 should be corrected to show that he received 50 retirement points for each year. This results in the applicant completing his 19^th and 20^th year for eligibility for retired pay.

7. Based upon the completion of 20 qualifying years it would now be appropriate to correct the record to show that the applicant is certified for eligibility for retired pay at age 60 and transfered to the retired reserve on 8 January 1987.

8. In view of the foregoing findings and conclusions correcting the applicant's records as recommended below will rectify an injustice and correct errors.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by:

a. crediting the individual concerned with a total of 50 (category N, unpaid) for RYE ending 7 January 1973;

b. rescinding his 8 March 1984 transfer to the Retired Reserve;

c. crediting him with 50 retirement points per year for RYEs 7 January 1984, 1985 and 1986;

d. issuing him notification of eligibility to receive retired pay at age
60 [a 20 year letter];

e. transferring him to the Retired Reserve, effective 8 January 1986; and

f. authorizing back pay, upon his application for retired pay.

2. The Army has an established program to counsel retiring soldiers on the rights, benefits, and privileges afforded as a result of military retirement. Retirement Services Officers (RSO) are available at most major Army installations to provide a retirement briefing, which includes information on the Survivor Benefit Plan (SBP). The applicant is advised to contact his nearest RSO (list enclosed ) as soon as possible to facilitate a smooth transition to retired status. If he elects to enroll in the SBP, premiums would be due from the first date he was eligible to enroll.
 
3. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

_FNE____ _MHM__ __KAH__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _ Fred N. Eichorn________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003084890
SUFFIX
RECON
DATE BOARDED	20030916
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	135.00
2.
3.
4.
5.
6.