RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 JANUARY 2006
      DOCKET NUMBER:  AR20050005157


      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             |
|     |Ms. Rene’ R. Parker               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. William Crain                 |     |Member               |
|     |Mr. Gerald Purcell                |     |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 counsel, that his record be
corrected to reflect a 20-year retirement with pay and promotion
reconsideration.

2.  The applicant states, through his counsel, that he has corresponded
with the Army Reserve Center and his congressman on numerous occasions
concerning his mandatory retirement date (MRD).  The Reserve Center assured
him that their calculations that showed his mandatory retirement date of
1998 were correct but, the applicant disagreed with their calculations.  He
believes that the difference in his calculations versus that of the Reserve
Center stems from a gap in service from 1978 to 1987 when he left the
active Army and transferred to the Florida National Guard.  The counsel
maintains that St. Louis characterize this gap as being in the Army Reserve
Control Group but, the Florida service records accurately portray this time
as being in the Inactive Reserve.

3.  The counsel states that the applicant’s records were never returned to
St. Louis and therefore, the Center does not have a complete and accurate
record on the applicant.  The counsel argues that if the applicant had been
allowed to stay in until his mandatory retirement date of 2007, as
established by the Florida National Guard, he would have had the requisite
number of points and years to retire and qualify for paid retirement at age
60.  The counsel concludes that because of the mix-up with the applicant’s
MRD, he requests that his (applicant) records be corrected, promotion
consideration be extended, and the applicant be granted the years needed
for a paid retirement.

4.  The applicant provides, through his counsel, a copy of his DD Form 214
(Armed Forces of the United States Report of Transfer or Discharge),
various orders, DA Form 71 (Oath of Office), DA Form 83 (Certificate of
Clearance and/or Security Determination), ROPA (Reserve Officer Personnel
Act) Mandatory Promotion Consideration and Mandatory Elimination, NGB Form
89 (Proceeding of a Federal Recognition Examining Board), Army National
Guard Current Annual Statements, previous correspondence with the Reserve
Center, Army Board of Correction of Military Records (ABCMR) and numerous
congressional inquiries.







CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant in the United States
Army Reserve on 17 May 1970.  He was 22 years old on the date he was
appointed.  On 8 June 1975, the applicant was relieved from active duty for
“failure of selection, temporary promotion” and transferred to the USAR
Control Group (Reinforcement).  He was credited with 4 years, 5 months, and
7 days of active federal service at the time of his release.

2.  Orders contained in the applicant’s records provide a chronological
history of his service in the Reserve and National Guard.  On 2 June 1976
the applicant was promoted to captain.  On 30 November 1976, the applicant
was relieved from USAR Control Group Standby and reassigned to USAR Control
Group Reinforcement.  On 1 February 1978, the applicant was discharged from
the Ready Reserve.  On 30 July 1987, the applicant was appointed in the
Army National Guard.  On 31 January 1996, the applicant was separated from
the Army National Guard and transferred to Ready Reserve Control Group
(IRR).  On 14 May 1999, the applicant was released from the USAR Control
Group for completion of the maximum authorized years of service and
assigned to the Retired Reserve.

3.  The ROPA form provided by the applicant lists his mandatory elimination
date as 14 November 2007.  This document also shows the applicant’s
elimination date based on age 53, as 12 May 2001; maximum age, as 13 May
2008; and based on total years of service and time in grade, as 11 June
2001.

4.  The NGB Form 89 recommended the applicant for appointment as captain,
Air Defense Artillery.  The appointment was contingent on the applicant
completing the Air Defense Artillery Company Grade Officer Refresher
Course.  The course was to be completed within two annual training periods.


5.  The applicant provided a copy of his annual statement from the Army
National Guard.  This document shows no break in service and credits the
applicant with 13 years of qualifying service for retired pay.

6.  The applicant provided numerous pieces of correspondence between him,
the Reserve Center, and his congressman.  He requested assistance in
correcting his military records to show that he qualifies for a 20-year
retirement with pay.  He also provided an application, dated 14 September
2001, to the ABCMR which was returned because the applicant had not
exhausted all his administrative remedies.  The documentation provided to
his congressman is the same documentation provided to the Board for his
current appeal.
7.  The applicant’s retirement points from the Retirement Points Accounting
System dated 29 November 2005, shows the applicant’s active duty, Reserve,
and National Guard service.  The summary of his retirement points indicates
that he has 14 years of qualifying service for retired pay.  He earned 23
retirement points from 17 May 1975 through 16 May 1976; 0 retirement points
for retirement years 17 May 1976 through 16 May 1977 and 17 May 1977
through 1 February 1978.  The form also shows that he had a break in
service from 2 February 1976 through 29 July 1987 and had 9 qualifying
years from 30 July 1987 through
29 July 1996, followed by 0 qualifying years from 30 July 1996 through 20
June 2005.

8.  The Soldier Management System form shows all records of conversation
between the applicant and the Reserve Center.  This document shows that on
   26 January 2005, the applicant’s counsel contacted the Center in
reference to recalculation of the applicant’s MRD.  The Reserve Center
stated that the applicant’s MRD of 1 June 1998, 28 years of commissioned
service, was correct. The Center explained to the counsel that the
applicant’s break-in-service “he is claiming” was not a true break because
the discharge was voided.

9.  Army Regulation 135-180 implements statutory authorities governing the
granting of retired pay to Soldiers and former Reserve Component Soldiers.
Paragraph 2-1 of that regulation states, in pertinent part, that to be
eligible for retired pay, an individual need not have a military status at
the time of application, but must have attained age 60, completed a minimum
of 20 years of qualifying service, and served the last 8 years of his
qualifying service as a Reserve component Soldier.

10.  Paragraph 2-8 of that same regulation describes qualifying service, as
pertains to this case, as service performed in an active status in a
Reserve component or in active federal service.  After 30 June 1949, a
reservist must earn a minimum of 50 retirement points each retirement year
to have that year credited as qualifying service.  When a person is in an
active status for a period less than a full retirement year, a minimum
number of retirement points are required to be earned in order to have that
period credited as qualifying service.

11.  U.S.C. Title 10, Section 14507(a), provides that a reserve officer of
the Army who holds the grade of lieutenant colonels and below who are not
on a list of officers recommended for promotion to the next higher grade
shall (if not earlier removed from the reserve active-status list) be
removed from the list under Section 14514 of this title on the first day of
the month after the month in which the officer completes 28 years of
commissioned service.  The applicant would have attained 28 years of
commissioned service on 16 May 1998.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s retirement points summary form shows that he had a
break in service from 2 February 1976 to 29 July 1987.  However, the
Reserve Center verified that the applicant’s discharge was voided and
therefore, there was no break in service.  Additionally, the applicant’s
counsel agrees that the applicant did not have a break in service and that
his Florida service records accurately portray this time as being in the
Inactive Reserve.

2.  Based upon the fact that the applicant did not have a break in service,
adding 28 years of commissioned service to his appointment date of 17 May
1970, and subtracting one day for inclusive dates, the applicant’s MRD (30
days after basic date) should have been listed as 16 June 1998.  The Board
is unsure how the Florida National Guard computed the applicant’s MRD to
establish a date of      14 November 2007.  The calculation provided by the
Reserve Center and recalculated by this Board verifies the applicant’s MRD
was 16 June 1998.  Why the applicant was not transferred to the Retired
Reserve until 1999 is also not clear but, is not evidence that he should
have remained in an active status until 2007 as he requested.

3.  A review of the applicant’s record does not support his counsel’s
argument that if he (applicant) had been allowed to remain in the service
until 2007, he would have had the requisite number of points and years to
qualify for a paid retirement.  In fact, the records are contrary to the
counsel’s argument.  The applicant’s record shows that during his 29 years
of service, 17 May 1970 until    14 May 1999, he earned 14 years of
qualifying service for retired pay.  Based upon the applicant’s past
performance, there is no indication that given an additional 8 years of
service until 2007, that 6 of those years would have been credited as
qualifying service years.

4.  Nevertheless, the applicant is not entitled to have his record
corrected to show that he had 20 qualifying years of service for retired
pay at age 60.  To do so would be a disservice to those Soldiers who have
served the requisite period of service to be eligible for retired pay at
age 60.

5.  Additionally, the applicant, through his counsel, requests that
promotion reconsideration be extended.  However, he provides no
justification or evidence to warrant reconsideration for promotion.  In
order to justify correction of a military record the applicant must show,
or it must otherwise satisfactorily appear, that the record is in error or
unjust.  The applicant has failed to submit evidence that would satisfy
that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JI ____  __WC    _  __GP____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented does not demonstrate the
existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.





                                  _____   John Infante________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005157                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060119                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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