MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        

                  BOARD DATE: 16 September 2003
                  DOCKET NUMBER : AR2003086259

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Fred N. 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: In effect, that he be credited with 1 year, 8 months, and 21 days of qualifying service for retirement in order to be eligible for
non-regular retired pay at age 60.

APPLICANT STATES: In effect, he has three points of concern that should be considered in reviewing his request to be granted the necessary service credit to qualify for retired pay at age 60. First, he does not understand why a 1991 letter in support of his non-deployability due to a medical condition was never considered. Second, his wife suffered from lung cancer and her health weighed heavily on his poor health, which made the travel from Atlanta to Savannah, Goergia very difficult on his back and caused a division in his marriage. Further, his back condition was aggravated by the cold weather and lack of heating in the housing at Fort Stewart, Georgia, which also made his back condition worse.

Finally, the applicant states that his request to be granted 1 year, 8 months, and 21 days of service credit in order to qualify for retired pay at age 60 should be considered because he has applied for veterans’ disability benefits for Agent Orange with no results. In support of his application, he submits copy of a letter dated 30 December 2002, issued by the Army Reserve Personnel Command (ARPERSCOM) and Orders Number 21-25, dated 30 January 1991, issued by Headquarters Fort Stewart, Fort Stewart, Georgia.

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

On 27 June 1969, the applicant was honorably released from active duty (REFRAD) and transferred to the United States Army Reserve (USAR) to complete his military service obligation. At the time of his separation, he had completed 1 year, 11 months and 20 days of active military service and had accrued 14 days of time lost due to being absent without leave (AWOL).

On 8 March 1975, the applicant enlisted into the USAR in the pay grade of E-4, which required a waiver for his lost time. He continuously served in the USAR, was promoted to the grade of E-5, and retained his assignment in the USAR unit for which he initially enlisted until 25 August 1990, at which time orders were published mobilizing him in support of Operation Desert Shield.

While being processed for deployment, the applicant complained of back pain. A memorandum on file in his Military Personnel Records Jacket (MPRJ) confirms he was medically evaluated and diagnosed as having a degenerative disc disease in his lumbar spine at the L-4/1-5 level, and arthritis in both sacroiliac joints. Based on this condition, medical officials determined that the applicant was unfit for further military service.

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On 14 May 1991, the applicant was notified that his medical records had been reviewed and a medical condition existed that rendered him medically disqualified for further retention in the USAR. Subsequent to his notification, the applicant was given the option of electing transfer to the Retired Reserve or discharge, or to request a medical waiver of his medical disqualification. The applicant elected transfer to the Retired Reserve. On 14 June 1991, the applicant was transferred to the Retired Reserve in pay grade E-5.

On 30 December 2002, the Chief, Transition and Separations Branch, ARPERSCOM, responded to the applicant’s application for retired pay benefits. The applicant was informed that in order to qualify for retired pay at age 60, a Reserve soldier must have completed a minimum of 20 qualifying years of service, and that service in an inactive reserve status, such as the Retired Reserve, is not creditable for retirement pay purposes. He was further advised that a Reserve soldier must earn 50 retirement points per year for that year to credited as a qualifying year for retired pay. In the applicant’s case, an audit of his military records showed that he had completed 18 years, 3 months, and
19 days of qualifying service for retirement, and as a result he was ineligible to receive retired pay. A chronological record of military service
(ARPC Form 249-3) that was completed based on a review of the applicant’s record was attached to this letter.

Army Regulation 135-180 sets forth the implementation statutory authority governing the granting of retired pay to members and former members of the Reserve Components. Paragraph 2-9, of that regulation provides, in pertinent part, that service in the Retired Reserves is not creditable for as qualifying service for retirement purposes.

Sections 12731 through 12739 of Title 10 of the United States Code provide the legal authority for non-regular retirement and receipt of retired pay at age 60. In effect, these laws require that a Reserve soldier 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.

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 notes the applicant’s contention that he should be granted the service credit necessary to qualify for retired pay based on the mitigating medical and personal factors he puts forth. However, the Board finds these factors, while unfortunate, are not sufficiently mitigating to support granting the requested relief.

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2. By law and regulation, in order to be eligible for non-regular retired pay at age 60, a member must have completed a minimum of 20 years of qualifying service for retired pay purposes. The evidence of record confirms that the applicant completed only 18 years, 3 months, and 19 days of qualifying service for retired pay purposes.

3. The record further shows that the applicant was medically disqualified for further retention in the USAR. Procedurally, this required that he be given the option of electing transfer to the Retired Reserve or discharge, or to request a medical waiver of his medical disqualification. The record further shows that after being given these options, the applicant elected not to request a medical waiver in order to continue to serve, and instead elected to be transferred to the Retired Reserve. The Board notes that at the time he made this election, the applicant was cognizant of the fact that his qualifying service and time served in the Retired Reserve combined would not qualify him for non-regular retirement and/or to receive retired pay at age 60. Therefore, the Board concludes that the applicant does not satisfy the legal and regulatory criteria necessary to qualify for a non-regular retirement and granting the requested relief would not be appropriate at this time.

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 this 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

__FE__ ___KH__ ___MM_ __ DENY APPLICATION

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

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INDEX

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