RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:           SEPTEMBER 30, 2004
      DOCKET NUMBER:   AR20040000237


      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. Luis Almodova                 |     |Analyst              |


The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Mr. Melvin H. Meyer               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his records be corrected to
indicate that he has 20 qualifying years of service in the Reserve and he
is eligible to receive retired pay.  The applicant also requests that his
records reflect that he was promoted to the pay grade, E-6.

2.  The applicant states, in effect, that the last two years of his service
in the Reserve are being questioned due to an error in requesting his
extension past the age of 60 or the loss of the request for this action.

3.  The applicant provides a self-authored appeal for correction of his
records to enable him to receive Reserve retired pay.  The applicant also
submits a number of other documents among which is a copy of orders which
assign him to the Retired Reserve with an effective date, 1 February 2004;
a copy of the DD Form 108, Application for Retired Pay Benefits, he
submitted and the reply he received from the Chief, Transition and
Separations Branch, dated 17 February 2004; and a copy of orders promoting
him to the rank and pay grade, Staff Sergeant, E-6, with an effective date,
1 April 2000.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard on 5 August 1959.  He
was ordered to Active Duty for Training (ADT) on 2 April 1960.  The
applicant was released from ADT and was returned to state control as a
member of the Nevada Army National Guard to complete his remaining service
obligation of 6 years and 10 months.

2.  The applicant continued to serve and was honorably discharged from the
United States Army Reserve (USAR) (Standby), in the rank and pay grade,
Specialist Five, E-5, at the expiration of his term of service on 31 July
1967.  On his discharge, the applicant had completed 6 qualifying years of
service.

3.  On 7 May 1985, the applicant reenlisted in the Idaho Army National
Guard and has continued to serve in some component since this date.

4.  The applicant's record shows that the applicant last reenlisted for 6
years on 16 September 1999.  This reenlistment, in effect, established his
new expiration of term of service at 15 September 2005.  At the end of his
enlistment, the
applicant would have been one month short of his 64th birthday and well
beyond the maximum allowable age for service.

5.  A Summary of Points, with an end date of 11 May 2003, submitted by the
applicant in support of his application, shows that he completed 20 years
of creditable service for Reserve retirement purposes.

6.  The applicant was promoted to the rank and pay grade, Staff Sergeant, E-
6, on 1 April 2000, with an effective date of 1 April 2000.

7.  The applicant submitted a DD Form 108, Application for Retired Pay
Benefits, on 19 October 2003.  The date "20030511" (11 May 2003) was
entered in Item 3 (Date Retired Pay to Begin), of the form.

8.  On 17 February 2004, the Chief, Transition and Separations Branch,
responded to the applicant's application for retirement.  The Chief,
Transition and Separations Branch, in effect, denied the applicant's
application for retired pay benefits.  In the letter of denial, the Chief,
Transition and Separations Branch, stated that an audit of the applicant's
military records showed that he had completed 18 years, 6 months, and 7
days of qualifying service for retirement and accordingly he was ineligible
to receive retired pay.  The summary of points that the Chief, Transition
and Separations Branch, provided the applicant did not allow any creditable
years of service for Reserve retired pay beyond 25 October 2001.

9.  The applicant attained the age of 60 on 25 October 2001 and he was
transferred to the Retired Reserve on 1 February 2004.

10.  The applicant's records do not show that he was issued a letter of
notification of eligibility for retired pay at age 60.

11.  In the processing of this case, a staff advisory opinion was obtained
from the U.S. Army Human Resources Command, Transition and Separations
Branch.  The Chief, Transition and Separations Branch, stated that he did
not have the authority to grant an exception to policy/regulation to allow
a Soldier to continue to participate in an active status past the age of
60.  The Chief added that the applicant had not provided any documentation
that authorized him to continue in an active status to obtain 20 qualifying
years.  Nonetheless, the Chief recommended that the Soldier be granted the
authority to continue past age 60 in
order to attain 20 qualifying years of service for retirement and that a
start date be established for receipt of retirement pay.

12.  The opinion was forwarded to the applicant for his information and
possible rebuttal on 15 June 2004.  The applicant concurred with the
advisory opinion on 18 June 2004.

13.  Army Regulation (AR) 135-180 prescribes the policy and procedures for
granting retired pay benefits at age 60, under Title 10, United States Code
(USC), sections 1331 through 1337.  This regulation specifies, in part,
that to be eligible for retired pay, an individual must have attained age
60 and completed a minimum of 20 years of qualifying service; served the
last 8 years of his or her qualifying service as a Reserve component
Soldier; and that subsequent to 30 June 1949, qualifying service is granted
only for each year of service an individual earns 50 or more retirement
points.

14.  Paragraph 7-3b(1)(c), AR 140-10 provides that USAR enlisted members,
not sooner removed for another reason, will be removed when they reach the
maximum age of 60.

15.  Title 10, section 12731(e) states that the date of entitlement to
retired pay under this section shall be the date on which the requirement
of subsection (a) [in effect, the requirements of AR 135-180 shown above]
have been completed.

16.  In the applicant's self-authored letter of appeal for a favorable
response, in effect, a request for a waiver to allow him to continue his
service beyond the maximum age of 60 so that he would attain eligibility to
receive Reserve retired pay, he stated that his unit completed paperwork
for an extension on his behalf so that he could complete 20 years service
to qualify to receive Reserve Retired pay.

17.  The applicant did not submit a copy of the paperwork that he alleges
that his unit submitted to retain him beyond the age of 60 so that he could
qualify for Reserve retired pay.

18.  The applicant's comments regarding some documents that reflect an
erroneous rank and pay grade for him have been noted.

DISCUSSION AND CONCLUSIONS:

1.  The applicable regulation provides that USAR enlisted members, not
sooner removed for another reason, will be removed when they reach the
maximum age of 60.  The applicant was not removed, as he should have been.
The applicant was advised by his chain of command that actions were under
way to get approval to retain him beyond the age of 60 in order for him to
qualify for Reserve retired pay.

2.  Despite the fact that the applicant did not provide a copy of the
paperwork he alleges was submitted by the unit for an extension of his
service, the applicant's contention that his unit submitted the necessary
paperwork to retain him beyond the age of 60 in order for him to attain
sufficient point to qualify him to receive retired pay is convincing.

3.  The applicant continued to perform duty with his unit in good faith
after the alleged necessary paperwork had been submitted to retain him
beyond the age of 60.  It was not the applicant's responsibility to ensure
that the paperwork was processed through to its conclusion.

4.  The applicant's unit allowed him to continue to "drill" with them after
he had attained the age of 60 and it appears that the applicant may have
continued to perform duty with his unit until 31 January 2004.  The
applicant was transferred to the Retired Reserve on 1 February 2004.

5.  The applicant accumulated over 20 qualifying years of service and
qualified to receive Reserve retired pay, albeit some of the service was
accumulated after he had reached the maximum allowable age to serve.  He is
therefore eligible to receive Reserve retired pay and benefits with an
effective date of 1 February 2004, the date he was transferred to the
Retired Reserve.

6.  The applicant has been in grade since 1 April 2000.  He has served in
this pay grade sufficiently long to have all records reflect his correct
rank and pay grade.

BOARD VOTE:

mm_____  js ______  le______  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence
presented was sufficient to warrant a recommendation for relief.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by:

      a.  amending his records to show that a waiver was granted the
applicant on or prior to 24 October 2001, the day before he reached the age
of 60, to allow his retention in service beyond the maximum age of 60 in
order for him to attain 20 qualifying years of service to enable him to
qualify for Reserve retired pay;

      b.  recognizing the applicant's service up to the allowable limits of
Title 10, Section 12731, the date he attained 20 years of qualifying
service for Reserve retired pay, in establishing the applicant's retiree
pay account;

      c.  awarding the applicant de facto status on any pay and allowance he
may have earned after the date he attained 20 qualifying years of service
for Reserve retired pay to preclude recoupment of pay and allowances
already received by him; and

      d.  correcting all records to show that the applicant was promoted to
the rank and pay grade, Staff Sergeant, E-6, on 1 April 2000.





            ______John Slone______
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040000237                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040930                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  338  |136.0000                                |
|2.  283                 |128.0000                                |
|3.  297                 |128.1400                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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