MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 16 September 2003
                  DOCKET NUMBER: AR2003085778

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Fred M. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		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: That he be granted his Reserve Retired Pay based on attaining age 60.

APPLICANT STATES: In effect, that he was not given the proper number of points for his service and has been unjustly denied his Retired Pay. He further states that in the late summer of 1939, he entered the Civilian Conservation Corps and served his time in Cadis Cove, Tennessee, located in the Great Smoky Mountains National Park, southeast of Knoxville. He further states that a warrant officer checked his records in May 1964 and told him that he had enough points but asked him to finish out his enlistment.

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

He was born on 23 October 1919 and was inducted at Fort Leavenworth, Kansas, on 22 May 1942. He completed his training as a radio operator and was transferred to the European-African-Middle Eastern Theater (EAMET) of Operations on 5 March 1943. He departed the EAMET on 19 September 1945 and was returned to Fort Leavenworth, where he was honorably discharged in the rank of Technician 4^th Class on 8 October 1945.

He enlisted in the Enlisted Reserve Corps (now known as the United States Army Reserve (USAR) on 9 October 1945 and remained in the Reserve Component service until his discharge.

His records also show that in March 1965, while serving in the rank of master sergeant (E-7), his unit requested a statement of service and summary of retirement points. On 14 July 1965, a response was dispatched, informing the applicant that he had only 18 years, 1 month and 5 days of creditable service for retirement purposes. He was also advised that he should associate himself with a Reserve unit and qualify himself with at least 2 more years of creditable service in order to be eligible for Retired Pay at age 60.

On 28 February 1966, he was honorably discharged from the USAR Control Group (Reinforcement) due to the expiration of his term of service (ETS).

The applicant turned 60 years of age on 23 October 1979 and on 23 December 1985, he submitted an application for Retired Pay Benefits (DD Form 108) to the Reserve Components Personnel Administration Center (RCPAC), now known as the Army Reserve Personnel Command (ARPERSCOM).

On 2 May 1986, the RCPAC responded to his application with a letter informing him that his records showed that he had only completed 19 years, 1 month and 9 days of qualifying service for retirement and provided him with a chronological record of his service and points. He was also informed that he was ineligible to receive Retired Pay.
On 11 December 2002, in response to a congressional inquiry, an audit was conducted of the applicant's records and it was determined that the applicant had 19 years, 4 months and 17 days of qualifying service for retirement purposes and that he was not entitled to receive Retired Pay benefits. He was also informed that he could apply to this Board and was provided the form to do so.

In the processing of this case, a staff member of the Board reviewed all of the available records in an attempt to find evidence of additional points that would qualify the applicant for an additional year of qualifying service. No additional points beyond what the officials at the ARPERSCOM had accounted for could be found. Additionally, there is no evidence that a 20-year letter was ever issued or that he was ever informed that he had sufficient creditable service for retirement purposes.

Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers. Chapter 7 of that regulation relates to the removal of soldiers from 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.

Army Regulation 135-178, in effect at the time, established the policies, standards, and procedures governing the administrative procedures governing the administrative separation of enlisted soldiers from the Reserve Components. Paragraph 1-3 states, in pertinent part, that orders discharging a soldier would not be revoked or the effective date changed after the effective date of discharge unless there was a manifest error or fraud. After the effective date of discharge, orders could not be amended by the separation authority only to correct manifest errors such as the wrong character of service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.

Army Regulation 135-180 implements the statutory authority governing the granting of Retired pay to soldiers of the Reserve Components. It states, in pertinent part, that to be eligible for Retired pay, a person must have attained age 60, have completed a minimum of 20 qualifying years of service and have served the last 8 years of his or her qualifying service as a Reserve Component soldier. Service creditable as a qualifying year is one in which the Reservist is in an active status and earns a minimum of 50 qualifying points during the retirement year.

That regulation also provides, in pertinent part, that under section 1331(d) of title 10, United States Code (USC), each Reserve component soldier who completes the service required to be eligible for Retired pay at age 60 will be notified in writing within 1 year after he or she has completed that service in the form of a 20-year letter. A copy of the notification will become a part of the Official Military Personnel File (OMPF).
The Civilian Conservation Corps (CCC) was established as an independent agency by act of June 28, 1937 (50 Statute 319). Its function was to provide employment and vocational training for unemployed youths and to a lesser extent, for war veterans and Indians, through conservation and natural resources development work, and beginning in May 1940, defense work on military reservations and forest protection. The CCC was abolished by the Labor-Federal Security Appropriations Act (56 Statute 569), July 2, 1942, providing for liquidation by June 30, 1943. Liquidations appropriations continued through June 30, 1948.

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’s honorable discharge from the USAR was accomplished in accordance with law and regulations applicable at the time.

2. The applicant’s contentions have been noted by the Board; however, they are not supported by the evidence submitted with his application or the evidence of record. The applicant was notified a year prior to his ETS that he was two years shy of the 20 creditable years of service necessary to qualify for Retired Pay at age 60 and there is nothing to suggest that he was ever notified that he had attained the necessary service required to qualify for retirement at age 60.

3. Accordingly, it was incumbent on the applicant to ensure that he had the required years of service to qualify for retirement before he decided that he would not reenlist or no longer serve in the USAR.

4. While the Board is sympathetic to the applicant’s present situation, he has submitted no evidence to substantiate that he was incorrectly informed that he had sufficient service to qualify for retirement at age 60 or that he was not credited with the proper amount of creditable service. Accordingly, in the absence of evidence to show that an error or injustice occurred, the Board finds no basis to grant him credit for service he did not perform. To do so would be to afford him a benefit that is not afforded to others in similar circumstances.

5. 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 this requirement.

6. 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

__fe ____ ___kh___ __mm ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085778
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/09/16
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 334	135.0200/RET PAY
2.
3.
4.
5.
6.