RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 July 2006
      DOCKET NUMBER:  AR20050004062


      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                 |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Donald L. Lewy                |     |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 through his Member of Congress (MOC), in effect,
that he be given a waiver of the maximum age limitations and that he be
retained in the Reserve in order that he can qualify for issuance of a 20-
Year Letter to qualify for retired pay.

2.  The applicant states, in effect, that he asked for this waiver in
2001.  He went to his operations sergeant and told him that he needed a
year past his 60th birthday so he could get in 20 years of service to
qualify to receive retired pay.  He states he was told that the paperwork
would be initiated.  In 2002, he asked the unit administrator to make sure
the paperwork for the waiver and the one year extension in the Reserve was
processed "up the chain of command."  In 2003, the applicant was activated
for one year.  He extended his service for six months and after his
release from active duty, he was reassigned back to his unit.  He again
asked the unit administrator to look into the extra year of service that
he needed for his 20 years.  In June 2004, he was advised that he was
being transferred to the IRR (Individual Ready Reserve) with 19 years and
20 days service.  The applicant summarizes by stating that it seems he can
do things by using the chain of command but, nothing was done for him.  As
a noncommissioned officer, he always took care of Soldiers below him.
Mission first, Soldiers second.  He needs help with getting another year
service for his 20 years.

3.  The applicant provides a copy of memorandums dated 13 and 21 December
2004 recommending approval of his retention in his troop program unit to
attain the 20 qualifying years service for retirement; a copy of two DD
Forms 214, Certificate of Release or Discharge from Active Duty, with
separation dates of 27 October 2002 and 26 April 2004; and a copy of two
orders pertinent to his reassignment and service, in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he enlisted in the Navy on 31 July 1961.
He served on active duty and was released from active duty on 30 April
1965.  He was transferred to the Naval Reserve.  The applicant was
discharged from the Naval Reserve on 30 July 1966.

2.  After a break in service lasting from 31 July 1966 through 7 February
1989, the applicant enlisted in the U.S. Army Reserve on 8 February 1989.
At the time of his enlistment in the Army Reserve, the applicant was 44
years, 9 months and 1 day
of age.  By this date, the applicant had completed 3 years, 8 months, and
26 days service creditable towards retirement.  Taking into consideration
his accumulated service and assuming that each year after his enlistment
would be a "good year," the applicant would not have qualified for a
twenty year retirement until he attained the age of 61 years and 5 days.
After his enlistment, the applicant remained in the Reserve through a
series of enlistments and extensions.

3.  There is no evidence in the available records that the applicant was
counseled or assisted in completing a request for age waiver at the time
of his enlistment in the Reserve.  There is also no evidence in the
available records that he was properly counseled about his age and
service requirements to be eligible to receive Reserve retired pay at the
time of his initial enlistment in the Army Reserve.

4.  There is no evidence in the applicant's service personnel record to
show that an attempt was made to reenlist him to enable him to complete
20 years of creditable service for retirement purposes as provided for by
Army Regulation (AR) 140-111, Table 4-2, Rule F, Note 2, which states,
"When the commander ARPERCEN [now the US Army Human Resources Command –
St. Louis] has determined that there was an implied or actual moral
obligation incurred by the U.S. Army Reserve to permit the member to
remain in the Ready Reserve to qualify for retired pay, based on long
service in the U.S. Army Reserve. The member may be reenlisted."

5.  A DD Form 214 on file in the applicant's official military personnel
file (OMPF) shows he was ordered to active duty in support of Operation
Desert Shield / Desert Storm on 6 December 1990 and was released from
active duty on 19 June 1991. The applicant served in Germany from 25
December 1990 through 19 May 1991 while he served on active duty.

6.  A DD Form 4, Enlistment/Reenlistment Document, Armed Forces of the
United States, on file in the applicant's Official Military Personnel File
(OMPF) shows he last reenlisted for 6 years, on 3 August 1997, in the
Reserve, in accordance with Army Regulation (AR) 140-111, Chapter 6.  The
applicant's expiration term of service (ETS) was established as 2 August
2003.  The TAPDB (Total Army Personnel Data Base) shows the applicant's
expiration term of service to be 2 August 2004.  There are no documents in
the applicant's OMPF to support this ETS date.  The applicant, however, in
his request to the Board, states he extended his enlistment in 2003;
however, documentary evidence of this extension is not available beyond the
ETS date (2 August 2004) which is shown on the TAPDB.
7.  One DD Form 214 the applicant submitted shows he was ordered to active
duty in support of Operation Noble Eagle on 30 September 2001 and was
released from active duty on 27 October 2002.  The applicant was returned
to the 307th Military Police Company, his Army Reserve TPU (Troop Program
Unit), in New Kensington, Pennsylvania.

8.  The second DD Form 214 the applicant submitted shows he was again
ordered to active duty on 24 January 2003 in support of Operation Enduring
Freedom, under the provisions of Title 10, United States Code 12302, and
was released from active duty on 26 April 2004.

9.  On the date the applicant was ordered to active duty in support of
Operation Enduring Freedom, his ETS was as indicated in paragraph 6 above,
2 August 2003.  There is no evidence the applicant was extended and that a
new expiration term of service date of 2 August 2004 was established for
him.

10.  The applicant's DD Forms 214 shows his date of birth to be 3 May 1944.
 The applicant turned 60 years of age on 3 May 2004.

11.  The applicant was ordered to active duty special work (ADSW) on 17 May
2004 for a period of 136 duty days by Orders Number 044956, 99th Regional
Readiness Command, dated 18 May 2004.  On the date the applicant was
ordered to ADSW, he had surpassed age 60 by 2 weeks.  As indicated in the
above paragraph, the applicant's date of birth is 3 May 1944.

12.  The applicant was released from his assignment and from the ADSW and
assigned to the Retired Reserve, with an effective date of 31 May 2004,
by Orders 04-160-00009, Headquarters, 99th Regional Readiness Command,
Coraopolis, Pennsylvania, dated 8 June 2004.  On the date of his transfer
to the Retired Reserve, the applicant had completed 19 years and 23 days
service creditable for retirement purposes and a total of 3,386
retirement points.

13.  An MMPA (Master Military Pay Account) printout, dated 31 December
2004, shows the applicant received pay for the period from 17 May through
31 May 2004.  There is no record the applicant continued to receive pay
after 31 May 2004 related to the orders referred to in the above paragraph.

14.  On the date the applicant would normally have been released from
ADSW, the applicant would have been 60 years, 4 months, and 27 days of
age.  On the date he would have completed the ADSW, he would have
completed 19 years, 5 months, and 6 days Reserve service creditable for
retirement purposes.
15.  The Commander, Headquarters, 307th Military Police Company, prepared a
memorandum, Subject:  Reinstatement of TPU Status, on 13 December 2004,
recommending that the applicant be reinstated to his TPU to enable him to
complete 20 years of qualifying service for retirement.

16.  On 21 December 2004, the Deputy Chief of Staff, G1, Headquarters, 99th
Regional Readiness Command, Coraopolis, Pennsylvania, recommended approval
of the commander's request and forwarded the request to the Commander, U.S.
Army Reserve Command (USARC), Fort McPherson, Georgia, by memorandum,
Subject:  Exception to Policy (Max Age) to Obtain Qualifying Years for
Retirement.

17.  On 22 February 2005, the Deputy Chief of Staff, G1, Headquarters, US
Army Reserve Command, Fort McPherson, responded to the commander's
request.  In her reply, she stated the applicant's only recourse was to
apply to this Board to obtain reinstatement to his active status in the
Selective Reserve.  She added that this Board had wide ranging authority
to make determinations in cases where regulatory guidance was concerned.
The filing of an application, she noted, did not imply that favorable
action would be taken.

18.  The applicant's Summary of Retirement Points, dated 6 June 2006,
shows he completed 19 years and 23 days of qualifying service for
retirement purposes by the date he was transferred to the Retired
Reserve.  He was not issued, nor eligible to have issued, a notification
of qualification for retired pay at age 60 (20-Year Letter) prior to his
transfer to the Retired Reserve.

19.  After the applicant reenlisted in the Army Reserve on 8 February 1989,
he consistently earned more than 50 retirement points each years of his
service.  The lowest number of points he accumulated was 50, which he
accrued during the period 8 February 1993 to 7 February 1994.  During all
other years, the applicant's earned points ranged from 69 to 365 points per
retirement year.

20.  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
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.

21.  Paragraph 7-3, in the above cited regulation, provides guidance on
length of Reserve service.  It states, in pertinent part, that the actual
removal date will be the last day of the month in which the soldier reaches
age 60.

22.  Army Regulation 135-180 (Army National Guard and Army Reserve-
Qualifying Service for Retired Pay - Non Regular Service), indicates, in
pertinent part, that to be eligible for retired pay, an individual does
not need to have a military status at the time of application for
retired pay, but must have (a) attained age 60; (b) completed a minimum
of 20 years of qualifying service; and, (c) served the last 8-years of
his or her qualifying service as a Reserve Components Soldier.  The
requirement to serve the last 8 years in a Reserve component was
amended, on 1 October 2002, to the last 6-years and on 26 April 2005
this was reduced to zero years.

23.  Sections 12731 through 12739 of Title 10, United States Code (USC),
authorize 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 ("a good year") is one in which a Reserve soldier earned 50
retirement points or more.

24.  AR 140-111, Table 4-2, Rule F, Note 2, states, "When the commander
ARPERCEN [now the US Army Human Resources Command – St. Louis] has
determined that there was an implied or actual moral obligation incurred by
the U.S. Army Reserve to permit the member to remain in the Ready Reserve
to qualify for retired pay, based on long service in the U.S. Army Reserve,
the member may be reenlisted."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted and served in the
Navy for 3 years and 9 months.  He was transferred to the Naval Reserve to
complete his enlistment obligation.

2.  After a break in service of 22 years, 6 months, and 7 days, the
applicant enlisted in the Army Reserve.  At the time of his enlistment
the applicant was 44 years, 9 months, and 1 day of age.

3.  By the date of his enlistment in the Army Reserve, the applicant had
completed 3 years, 8 months, and 26 days creditable service towards
retirement.  Taking into consideration his accumulated service, and
assuming that each year after his enlistment would be a "good year," the
applicant would not have qualified for a twenty year retirement until
after he was over 61 years of age.

4.  Applicable regulation states that Soldiers will be removed from an
active status and will be discharged, or if qualified and if they so
request, will be transferred to the
Retired Reserve.  The actual removal date will be the last day of the
month in which the soldier reaches age 60.

5.  There is no evidence in the available records the applicant was
counseled or assisted in completing a request for age waiver at the time
of his enlistment in the Reserve or at any of his subsequent reenlistments
or extensions.

6.  The applicant's contentions that several times he sought the
assistance of personnel in his unit who had the authority and the
responsibility to initiate a request for his retention in the Reserve
beyond the age of 60 for him to qualify for a Reserve retirement could
not be corroborated through official documents.

7.  The evidence of record does show that the applicant was provided
support for his request for reinstatement and a waiver of maximum age
limitations, to allow him to continue to serve in the Reserve beyond the
age of 60, in order to qualify for Reserve retirement pay and benefits.
This assistance came after the applicant had been transferred to the
Retired Reserve.

8.  Federal law prohibits the retention of a Soldier for the purpose of
attaining sufficient service to qualify for Reserve retirement pay and
benefits after they have attained the age of 60, unless the provisions of
AR 140-111, Table 4-2, Rule F, Note 2, have been exercised by command and
the Commander, HRC-St. Louis, has determined that there was an implied or
actual moral obligation incurred by the Reserve to permit the member to
remain in the Ready Reserve to qualify for retired pay, based on long
service in the Reserve.

9.  Pertinent regulation indicates that to be eligible for retired pay, an
individual does not need to have a military status at the time of
application for retired pay, but must have (a) attained age 60; (b)
completed a minimum of 20 years of qualifying service; and, (c) served the
last 8-years of their qualifying service as a Reserve Components Soldier.
The requirement to serve the last 8 years in a Reserve component was
amended to the last 6-years and on 26 April 2005 this was reduced to zero
years.

10.  There is evidence the applicant attempted to continue his service so
that he could qualify for issuance of a 20-year letter and to receive
Reserve retired pay.  To this end, he volunteered to perform ADSW and was
ordered to perform such duty for 136 days beginning on 17 May 2004;
however, on 31 May 2004, the ADSW was terminated and it is apparent that he
was not allowed to continue for the full 136 days.  The applicant was
transferred to the Retired Reserve on the day following.  The evidence
further shows he received pay for the period from 17 through 31 May 2004
and no pay after this date.
11.  The evidence shows that the applicant enlisted in the Reserve, in good
faith, believing that he would qualify for Retirement if he remained in
service.  In 2001 he attempted, he states, to have the appropriate
paperwork initiated to secure a waiver of the maximum age restriction so
that he could remain beyond his 60th birthday to allow him to serve and
qualify for Reserve retirement compensation.  It is apparent this paperwork
was not initiated and he was not retained beyond the age of 60.

12.  At the time of the applicant's transfer to the Retired Reserve, he was
past 60 years of age.  He was removed from an active status due to his
having reached 60 years of age.  According to regulation, the applicant's
removal date was the last day of the month in which he reached age 60, or
in this case, 31 May 2004.

13.  At the time of the applicant's transfer to the Retired Reserve, the
applicant had completed 19 years and 24 days service creditable for
retirement.  The applicant was short 11 months and 6 days of having
sufficient service creditable for retirement to qualify for retired pay.
At the time of his transfer to the Retired Reserve the applicant had a
total of 3,386 cumulative retirement points.

14.  Based on the evidence and equity consideration in this case, the
applicant is entitled to relief as follows:  a.) the applicant is
entitled to have his transfer to the Retired Reserve on 31 May 2004
revoked; b.). he is entitled to reinstatement in his TPU effective 31 May
2004; c.) he is entitled to an extension of the period of his last
reenlistment of 3 August 1997 from 6 years to 7 years and 10 months
thereby extending his ETS to 3 June 2005 to allow him to complete 20
years service creditable for retirement; d. ) entitled to the
redistribution of accumulated retirement points to his unqualifying
retirement years ending 2004 and 2005; and e.) to be certified eligible
to receive Reserve Retired pay with an effective date of 1 June 2005.

BOARD VOTE:

__BJE___  __DLL__  __JEV  __  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.) revoking the applicant's transfer, on 31 May 2004, to the
Retired Reserve;


      b.) reinstating the applicant to his TPU effective 31 May 2004;


      c.) amending the period of the applicant's last reenlistment of 3
August 1997 from 6 years to a period of 7 years and 10 months thereby
extending his ETS to 3 June 2005 to allow him to complete 20 years
service creditable for retirement;


      d. ) redistributing accumulated retirement points earned by the
applicant to his unqualifying retirement years ending 2004 and 2005;


      e.) certifying the applicant eligible to receive Reserve Retired pay
with a back-dated effective date of 1 June 2005, with all due back pay
and allowances; and


      f.) transferring the applicant to the Retired Reserve with an
effective date of 1 June 2005.




                                  ___    James E. Vick_______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050004062                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/07/19                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIAL GRANT                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  338  |136.0000                                |
|2.   341                |136.0300                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]