MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 28 October 2003
         DOCKET NUMBER: AR2003085423


         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. Carolyn Wade		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Linda D. Simmons		Member
Ms. Marla J. N. Troup		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: In effect, reconsideration of his earlier appeals for Reserve retirement benefits at age 60 by crediting him with 1 year, 6 months, and 19 days of inactive United States Naval Reserve (USNR) time.

APPLICANT STATES: In effect, that he served his tour of duty plus 6 months and was discharged from the USNR on 12 December 1945. He states that he should be credited with 1 year, 6 months, and 19 days of inactive time for the period 12 December 1945 to 31 December 1946, plus 6 months. He also states that during the time he served, inactive Reserve time counted toward longevity.

In support of his application, he submits a copy of his Notice of Separation from the United States Naval Service (NAVPERS-553), a Chronological Statement of Retirement Points (Army Reserve Personnel Command Form 249-2-E), and a calendar page showing the official end of World War II.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 6 March 1985 (docket number AC84-07499) and reconsiderations on 2 October 1985 (docket number AC84-07499A), 20 May 1997 (docket number AC84-07499-E), and 19 July 2001 (docket number AR2000049056). The staff of the Board has reconsidered and denied his requests for reconsideration on 10 February 1986, 1 October 1986, 24 November 1989, 9 March 1990, and 24 May 1995.

The applicant’s contentions are new argument that requires Board consideration.

The applicant was born on 24 July 1924. The applicant was inducted into the USNR on 12 April 1943 and entered active duty on 19 April 1943. He served until he was honorably discharged on 12 December 1945. He was credited with 2 years, 7 months, and 24 days of creditable military service.

The applicant has a break in service from 13 December 1945 to 12 December 1950. On 13 December 1950, the applicant enlisted in the United States Army Reserve (USAR) and served until 12 December 1956.

The applicant had a 17-year, 3-month break in service from 13 December 1956 to 9 March 1974. Following this, the applicant requested enlistment in the USAR and a waiver of the age requirement to complete his 20 years of service for retirement. The applicant signed a statement acknowledging that he could not serve beyond age 60 and qualify for retired pay. He was also advised that his request for a waiver to serve beyond age 60 was denied. His initial and all subsequent reenlistments were approved with the condition that he would be discharged at his 60th birthday. The applicant was fully aware of the age restrictions each time he reenlisted; however, he continued to reenlist knowing he would not be able to retire. On 26 July 1984, the applicant reached his 60th birthday and was mandatorily discharged in pay grade E-6 on 31 July 1984. He was credited with 19 years and 13 days of qualifying service for retirement.

In the processing of this case, an advisory opinion was obtained on 19 March 2003 from The United States Army Reserve Personnel Command, Transition and Separations Branch, Office of Retirement and Annuities. The staff of that office stated that they have corresponded on numerous occasions with the applicant as well as congressmen on his behalf and have related to them that the applicant does not have 20 years of qualifying service for retirement. The staff further stated that the applicant’s enlistment contract became null when he attained age 60 and was required by law to retire or be discharged. Since, the applicant did not meet eligibility requirements at age 60 (20 qualifying years), he was discharged. The staff of the office also noted that the applicant had left the service on two occasions for a total of 22 years, 2 months, and 26 days.

Pertinent regulations specify that to be eligible to reenlist in the Reserve, a member must be able to qualify for retired pay by age 60. Except for those personnel granted a waiver, no provision was designed or intended to permit an enlisted member of the Reserve to remain in an active Reserve status beyond the last day of the month in which the member attained age 60. Army Regulation 140-111, Table 4-1, provides that when the Commander, Army Reserve Personnel Command has determined that there is an implied or actual moral obligation incurred by the USAR to permit the member to remain in the Ready Reserve to qualify for retired pay, based on long service in the USAR, the member may be reenlisted to complete 20 qualifying years of service for retired pay by age 60.

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 Board again thoroughly reviewed the applicant’s record and once again found no error, inequity, or injustice in his case. The applicant requested enlistment and was granted an age waiver to enlist; however, he was repeatedly advised that he would be mandatorily discharged at the age of 60; therefore, he would be unable to complete the required 20 years of active service to qualify for retirement.

2. The Board noted the applicant’s latest contention that he should be given credit for his 1 year, 6 months, and 19 days (12 December 1945 to 31 December 1946) of inactive USNR service. However, this particular period of time is reflected in the applicant’s record as a part of his first break in service and does not qualify for credit toward retirement.

3. The Board also noted the applicant’s contention regarding credit for the additional 6 months he spent on his induction contract. The Board determined that the applicant was given credit for the additional 6 months on his initial period of service and it is appropriately shown on his NAVPERS-553.

4. Additionally, an advisory opinion was obtained from the United States Army Reserve Personnel Command, Transition and Separations Branch, Office of Retirement and Annuities. The staff of the Office of Retirement and Annuities indicated they have corresponded with the applicant as well as many congressmen who have inquired on his behalf on numerous occasions, and that he has been repeatedly informed that he does not meet the requirements of the law for retirement.

5. The applicant’s previous requests were given due consideration by the Board and on numerous occasions. He has not provided any evidence to convince the Board that he should be granted retired pay. The Board notes the applicant continued to reenlist knowing that he would not be allowed to stay beyond the age of 60 and would mandatorily discharged upon reaching age 60. Additionally, the Board notes that the applicant had ample opportunity to complete 20 years of qualifying service, but elected instead to have a break in service of 17-plus years.

6. 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.

7. 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

__rjw___ __lds___ __mjnt__ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2003085423
SUFFIX
RECON
DATE BOARDED	20031028
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1.	112.0700
2.
3.
4.
5.
6.