PROCEEDINGS
        

         IN THE CASE OF.
        

         BOARD DATE: 23 October 2003
         DOCKET NUMBER: AR2003087273

         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. William Blakely		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Ms. Margaret K. Patterson		Member
Mr. Arthur A. Omartian		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, that his military records be corrected to show that he completed the 20 years of qualifying service necessary to receive Reserve non-regular retired pay at age 60.

3. The applicant states, in effect, that after receiving a waiver in order to complete 20 qualifying years for retired pay and on 1 March 1995, he reenlisted on a points only basis. He states that this waiver was dishonored when his request for retirement was later denied. In support of his application, he submits a copy of the waiver approval letter from the Chief, Enlisted Services Division, Army Reserve Personnel Command (ARPERSCOM), dated 1 March 1995, a response to Congressional inquiry from the ARPERSCOM Director of Personnel Actions and Services, dated 23 December 2002, and a Chronological Statement of Retirement Points (ARPC Form 249-2-E).

4. The applicant’s military records show that he entered in the Regular Army on 30 September 1960, and continuously served on active duty until being honorably separated on 11 September 1963.

5. Upon his separation from active duty, the applicant was transferred to the United States Army Reserve (USAR) and he continued to serve in that status until he was honorably discharged on 11 September 1966.

6. The record also confirms that the applicant completed two periods of honorable service in the Army National Guard (ARNG). The first from
9 December 1981 to 8 December 1983 and the second from 18 January 1985 to 7 January 1988.

7. On 31 May 1991, the applicant began his last continuous period of service in the USAR. He continued to serve in that status until reaching the mandatory age limit of 60. There is no evidence that he was ever issued a retirement eligibility certificate (20 Year Letter).

8. On 1 March 1995, the Chief, Enlisted Services Division, ARPERSCOM, approved the applicant’s request to be retained for the period necessary to complete 20 qualifying years of service for retired pay. The letter informed the applicant that his participation would be monitored to ensure he maintained an adequate level of participation for each retirement year and failure to maintain the minimum of 50 retirement points during any retirement year would result in his waiver being voided and in his discharge or transfer to the Retired Reserve. In addition, this notification letter advised the applicant that no further extension beyond age 60 would be granted.

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9. On 23 December 2002, the ARPERSCOM Director of Personnel Actions and Services, in a response to a Congressional inquiry, clarified the applicant’s retirement service record. This ARPERSCOM official stated the applicant believed he was entitled to retirement as indicated on his ARPC Form 249-2-E; however, the applicant had failed to read the entire document. This official further stated that at the time the applicant had 19 years of qualifying service for retirement, he was given the authority to stay in the active Reserve until he attained 20 qualifying years of service or reached age sixty, whichever came first, and the applicant had attained age 60 on 30 May 2001.

10. In his Congressional inquiry response, the Director of Personnel Actions and Services also stated that the law required the applicant to be either retired or discharged at age 60. However, the applicant continued to drill with his unit after he reached age 60 and those retirement points are reflected on his ARPC Form 249-2-E. This official further stated that the applicant and his unit were aware of the requirement that soldiers be either retired or discharged at age 60, and ARPERSCOM did not have the authority to grant an exception to the statute. As a result, the applicant’s retirement application was denied. Finally, this official advised the applicant that he had the option to apply to this Board for relief.

11. The applicant’s ARPC Form 249-2-E shows that he completed 20 years,
11 months, and 13 days of qualifying service for retired pay purposes. This document confirms that subsequent to his reaching age sixty, he continued to serve in the USAR and earned 74 points for the Retirement Year Ending (RYE) on 30 May 2002. This document also shows that he earned a total of 2243 creditable points and that he earned in excess of the 50 points required for a qualifying year in several of the years he served between 1960 and 2000.

12. Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers. Chapter 7 of the regulation relates to the removal of soldiers from an active status. It states, in pertinent part, that soldiers removed from an active status will be discharged or transferred to the Retired Reserve, if qualified and if they so request.

13. Sections 12731 through 12739 of Title 10 of the United States Code authorizes 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. After 1 July 1949, a qualifying year is one in which a Reserve soldier earned 50 retirement points or more.

14. The term “good years” is an unofficial term used to mean years 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.

15. Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), indicates, in pertinent part, that to be eligible for retired pay an individual need not have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and, (3) served the last 8-years of his or her qualifying service as a Reserve Component soldier.

CONCLUSIONS:

1. The evidence of record clearly shows that the applicant completed 19 years, 11 months, and 13 days of qualifying service for retirement purposes prior to reaching age 60. Subsequent to his reaching age sixty, he was allowed to continue to serve in the USAR and he earned an additional 74 points for the RYE on 30 May 2002.

2. The evidence of record also shows that the applicant, while technically failing to obtain the 20 qualifying years of service necessary for retirement prior to reaching age 60, did earn more than enough total creditable points and earned in excess of the 50 points required for a qualifying year in several of the years he served between 1960 and 2000.

3. In view of the facts of this case, given the applicant and his unit were under the impression that the applicant had received a waiver that would allow him to serve until he completed 20 qualifying years of service, and since the applicant earned more than enough total creditable points, it would serve the interest of justice and equity to redistribute excess retirement points earned by the applicant in existing qualifying years to the RYE on 11 September 1964, which is currently a nonqualifying year. This redistribution would not involve awarding additional retirement points, entitlement to additional drill pay, or adding an additional period of service.

4. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected by:
 
         a. redistributing the necessary excess retirement points from his prior retirement years to his RYE on 11 September 1964, and showing that this is a qualifying year for retired pay purposes.

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         b. allowing him to elect an option under the Survivor Benefit Plan;
 
         c. by showing that he made timely application for retired pay; and

         d. providing him retired pay effective the date of the approval of these Proceedings.

BOARD VOTE:

__JHL___ __AO__ __MKP___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Joann H. Langston
                  CHAIRPERSON

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INDEX

CASE ID	AR2003087273
SUFFIX
RECON
DATE BOARDED	2003/10/23
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	135.0200
2.
3.
4.
5.
6.