MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 November 2003
         DOCKET NUMBER: AR2003086419

         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. Deyon D. Battle		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Ms. Eloise C. Prendergast		Member
Mr. Ronald E. Blakely		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 his records be corrected to show that he completed 20 qualifying years of service which would allow him to be eligible for United States Army Reserve (USAR) retirement.

APPLICANT STATES: That he entered into the United States Army on 22 June 1942 and that he served continuously in Active Duty during World War II, the Korean War and active duty training with the National Guard and USAR until 9 April 1967, when he received his Retired Reserve Certificate. He states that the only break that he had in service was during the period of 1 January 1954 until 9 April 1954, at which time he was in an inactive status with the Ohio Army National Guard. He goes on to state that in April 1967, he requested retirement to collect his benefits and that he was told that his records were not available at that time and that the points he had earned were insufficient. He states that he continued to follow-up on his request at his own expense, but to no avail. He further states that in 2001, he was advised, by both Army and Navy veterans in his same situation, that they had received their delayed benefits and that they advised him to contact the Army Reserve Personnel Command (ARPERSCOM) in St. Louis, Missouri, to start the process again.

He continues by stating that most of the documents that the ARPERSCOM sent to him were correct; however, some of the documents have errors. He concludes by stating that he is 81 years old with a wife and that they are both in fair health, living on a very small income. He states that after being disappointed for many years, he looks forward to his request being processed as soon as possible so that he can receive some retirement benefits. In support of his application, he submits copies of documents currently maintained in his Official Military Personal File; copies of the Reserve Retirement Summary Point Sheet with his comments written in pen and ink changes; and a copy of a letter from the ARPERCOM dated 2 August 2002, informing him that his was not eligible to receive retired pay.

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

He was born on 6 September 1921 and inducted into the Army on 22 June 1942. He attended Officer Candidate School and was commissioned a second lieutenant (O1) Regular Army on 14 January 1943. He was promoted to first lieutenant (O2) on 1 December 1944. On 4 February 1946, he was commissioned O2 in the Army of the United States Officers’ Reserve Corps. He was promoted to captain (O3) on 28 January 1947. He was released from the Army Reserve on 10 October 1958, for the purpose of transfer to the Ohio Army National Guard (OHARNG). On 11 March 1961, he was promoted to major (O4). He resigned from the OHARNG with an effective date of 1 April 1964 and he was transferred to the United States Army Reserve (USAR).

On 19 June 1965, the applicant was notified by letter, that during his retirement year which ended on 9 April 1965, he failed to earn sufficient points prescribed in Army Regulation 140-10 for retention in an active status. He was informed that he must elect to be retained in an active status with a waiver; to resign or to transfer to the Retired Reserve.

Accordingly, on 21 June 1965, he submitted a request for retention in the Active Reserve with a waiver and his request was approved on 23 June 1965.

On 16 March 1967, the applicant was again notified that he was subject to mandatory removal from the Active Reserve because he failed to earn sufficient points during one or both of the retirement years following an unsatisfactory year for which a waiver was granted. He was informed that he was eligible for either an honorable discharge from the USAR or transfer to the Retired Reserve.

On 13 April 1967, he was removed from the Active Reserve and he was transferred to the USAR Control Group (Retired Reserve).

The Department of the Army, Office of the Adjutant General, notified the applicant on 12 February 1968, that his military records had been examined to determine if his service met the requirement for issuance of the notification of eligibility for retired pay at age 60. In the letter, he was informed that he did not have sufficient creditable service for retirement at the time and that he was not eligible to receive the notification of eligibility for retired pay (20 year letter).

On 8 January 1970, the applicant submitted a letter to the Commander, ARPERSCOM, requesting that he be transferred from the Retired Reserve to the Standby Reserve. He stated that it was his intention to attend the USAR School in Dayton, Ohio and to further his education and earn points toward retirement by completing extension courses.

The ARPERSCOM responded to his request by letter dated 26 January 1970, stating that there are no provisions whereby he may be transferred from the Retired Reserve to the Standby Reserve and be attached to a USAR unit. He was further informed that he may submit a request to be transferred from the Retired Reserve to the Ready Reserve and be assigned to a USAR unit. He was informed of the requirements that needed to be met before he could be considered for a transfer and that he should submit a request for transfer to the Ready Reserve through the appropriate channels for consideration.

The letter from ARPERSCOM further explained to the applicant that if his request was approved, he would be required to accrue 27 retirement points during each retirement year, 15 of which would be awarded for membership in the active


Reserve; and that although his records show that he has 14 years, 10 months and 5 days of qualifying federal service, he would be unable to complete 20 years of qualifying service on 13 January 1971 (his mandatory removal date). The applicant was told that along with his request, he should include a statement acknowledging that he understood that approval of the transfer would not qualify him for retirement benefits and that no assurance would be given that his request for transfer would be approved; however, it will be given every consideration in keeping with his qualifications and the needs of the service.

On 2 August 2002, in response to an application for retired pay benefits that the applicant had submitted, the ARPERSCOM informed him that to be eligible for retired pay at age 60, a Reserve Soldier or former Reserve Soldier must have completed a minimum of 20 qualifying years of service, the last 8 years of which must have been in a Reserve component. He was informed that inactive Reserve service, such as the Retired Reserve, is not creditable for retirement purposes. He was again informed that a Reserve Soldier must have earned at least 50 retirement points per year for that service to be creditable for retirement and that he had completed only 15 years, 5 months and 10 days of qualifying service for retirement. He was provided a chronological record of military service.

There is no indication in the available records to show that the applicant ever disputed the computation of his retirement points or provided additional documentation to the ARPERSCOM to show that he had the points necessary to qualify for a 20-year USAR retirement at age 60 (6 September 1981).

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.

Title 10, U.S. Code, sections 12731 - 12737 provides the authorization for USAR Retired Pay at age 60. It provides, in pertinent part, that a qualifying year of service for Retired Pay purposes is a year in which a member earns at least 50 retirement points in a retirement year. Once a member has earned 20 creditable years for retirement purposes, of which the last 8 years are spent in a Reserve Component, a 20-year letter will be issued to the applicant which constitutes authority/eligibility to receive Retired Pay upon application, at age 60. Once the 20-year letter has been issued, the only way such authority can be revoked is if it can be proven that it was obtained through fraud.




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. 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.

2. The requirement for a 20-year USAR retirement is to have served 20 years of qualifying service for retirement purposes and to have reached the age of 60. The applicant did not have 20 years of qualifying service at the time of his discharge and he has submitted no evidence to show that the computation of his service is incorrect.

3. While the Board has noted the applicant’s contentions and appreciates the service he rendered to his country, his contentions are unsubstantiated by the evidence of record. The records show that he was properly notified that he failed to earn sufficient points prescribed in Army Regulation 140-10 for retention in an active status. Even after being granted a waiver to remain in an active status, he again failed to earn sufficient points during one or both of the retirement years for which a waiver was granted.

4. On 26 January 1970, the applicant was again informed that he had not earned enough points for the standard of accruing a minimum of 20 years of qualifying service and that he would be unable to complete 20 years of qualifying service on before his mandatory removal date.

5. Accordingly, in the absence of evidence to the contrary, there appears to be no basis to qualify him for Retired Reserve pay and benefits.

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

___reb __ ___ecp__ ___ao___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086419
SUFFIX
RECON
DATE BOARDED	2003/11/13
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 334	135.0200/RET PT CR
2.
3.
4.
5.
6.