RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            11 JULY 2006
      DOCKET NUMBER:   AR20050016829


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Carmen Duncan                 |     |Member               |
|     |Mr. Jeanette McCants              |     |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 that he be granted his military retirement, that
he be given separation pay instead of readjustment pay and that item 28 of
his report of separation (DD Form 214) be clarified or deleted.

2.  The applicant states, in effect, that he was unjustly released from
active duty (REFRAD) and given $15,000 in readjustment pay instead of the
$110,000 in separation pay he was told he would receive.  He goes on to
state that he was transferred to the United States Army Reserve (USAR) and
in September 2005, he was informed that he was ineligible for Retired Pay
at age 60 because he had not served the last eight years of qualifying
service in a Reserve Component.  He continues by stating that he was never
informed of why he was being REFRAD and he was never informed that he had
to serve the last 8 years of qualifying service in a Reserve Component.  He
further states that he had an exemplary record of service and that it is an
injustice to deny him the retirement that he earned.

3.  The applicant provides a copy of a letter from the Human Service
Command – St. Louis, Missouri, a chronological record of military service
(AHRC-Form 249-3), reassignment orders, a copy of his DD Form 214 dated 2
October 1992, and 17 various third party letters of support and
recommendation.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 12 March 1945 and initially enlisted in the
Maryland Army National Guard (MDARNG) on 18 September 1966 and continued to
serve in the MDARNG until he was honorably discharged on 17 September 1972.


2.  On 4 June 1976, he enlisted in the Regular Army in Phoenix, Arizona,
for a period 6 years and served in an enlisted status until he was
honorably discharged in the pay grade of E-6 on 23 July 1984, to accept a
USAR warrant officer appointment.

3.  On 24 July 1984, he was appointed as a USAR Warrant Officer One (WO1)
with a concurrent call to active duty for a period of 4 years as an air
traffic control technician.  He was promoted to the rank of chief warrant
officer two (CW2) on 24 July 1986.

4.  On 24 March 1988, the applicant attended the Supply and Service
Management Officer Course for the purpose of reclassification to military
occupational specialty (MOS) 920B (Supply Technician).  The applicant
marginally achieved course standards and the Service School Academic
Evaluation Report (DA Form 1059) was referred to the applicant for comment.

5.  He was reclassified to MOS 920B and was transferred to Fort Ord,
California for duty as a supply technician in July 1988.

6.  On 17 May 1989, the applicant received a change of rater officer
evaluation report (OER) covering the period from 27 May 1988 through 15
April 1989.  In Part IVa, under professional competence, his rater gave him
a “3” rating under “Possesses capacity to acquire knowledge/grasp
concepts”.  He gave the applicant a “2” rating under “Demonstrates
appropriate knowledge and expertise in assigned tasks”.  He received “1”
ratings in the remaining 12 areas.  The supporting comments indicate that
the applicant demonstrated difficulty in acquiring the required knowledge
of logistics software systems and that he did not understand the
relationship of automated data processing to his section sufficiently to
teach and supervise subordinates.

7.  In Part V, under performance and potential, his rater gave him a
“Usually exceeded requirements” rating under performance and a rating of
“Promote with contemporaries” under potential.

8.  In Part VII, his senior rater (SR) placed him in the third block of his
SR profile, which placed the applicant below center of mass on the SR’s
profile.  The supporting comments from the SR indicate that the applicant
was significantly behind his contemporaries in the supply management field
and that he was having some difficulty catching up.  He went on to state
that without the benefit of years of experience as a noncommissioned
officer in the field of logistics, the applicant was having to progress
through the process of learning what supply management sergeants do.

9.  On 22 November 1989, he received a change of duty OER covering the
period of 16 April 1989 through 15 October 1989, evaluating him as a supply
support technician.  In Part IVa, under professional competence, his rater
gave him a “2” rating under “Possesses capacity to acquire knowledge/grasp
concepts”.  He gave the applicant a “2” rating under “Demonstrates
appropriate knowledge and expertise in assigned tasks”.  He received “1”
ratings in the remaining 12 areas.  The supporting comments indicate that
the applicant needed further experience in automated supply systems to
develop knowledge.

10.  His rater gave him a “Met Requirements” rating under performance and
recommended that he be promoted with his contemporaries.
11.  His SR placed him in the fourth block of his SR profile and commented
that the applicant did not possess the necessary technical background to
ensure efficient management of stock control activity operations and that
with the requisite training and experience, he had the potential to be
successful in his specialty field.

12.  The report was referred to the applicant for comments and he responded
to the effect that he had been experiencing difficulty from the very
beginning when he was given the new MOS and he believed that he was in the
wrong MOS; however, he would continue to Soldier on.

13.  On 26 June 1990, he underwent a Medical Evaluation Board (MEB) which
recommended that he be referred to a Physical Evaluation Board (PEB).  The
applicant indicated that he did not desire to continue on active duty and
that he concurred with the findings and recommendations of the MEB.  On 13
July 1990, a PEB was convened in San Francisco, California, which found
that the applicant was fit and recommended that he be returned to duty.
The applicant concurred with the findings and recommendations of the PEB
and waived a formal hearing of his case.

14.  On 4 September 1990, he received a change of duty OER covering the
period from 16 October 1989 through 10 August 1990, evaluating him as a
supply technician.  In Part IVa, under professional competence, his rater
gave him a “2” rating under “Demonstrates appropriate knowledge and
expertise in assigned tasks”.  He received “1” ratings in the remaining 13
areas.

15.  His rater deemed that his performance “Met Requirements” and that he
should be promoted with his contemporaries.  The supporting comments
indicate that the applicant should attend the DS4 Management Course to
improve his experience and background in automated supply systems.  He also
stated that because the applicant had been reclassified into his current
MOS without the background and technical training needed, his section had
failed to maintain supply performance objectives outlined by current
regulations.

16.  The SR placed the applicant in the third block of his SR profile which
placed the applicant below center of mass on his profile.

17.  The applicant was transferred to Germany and on 2 May 1991, he
received a change of rater OER covering the period from 11 August 1990
through 5 May 1991, evaluating him as a supply support technician.

18.   In Part IVa, under professional competence, his rater gave him a “2”
rating in seven areas and a “1” rating in the remaining seven areas.  The
supporting comments indicate that the applicant had an extremely limited
knowledge of the technical field and that he did not rapidly assimilate
information.  His rater also indicated that the applicant needed
improvement in the effective counseling and mentoring of subordinates and
that he had failed to hold his subordinates accountable and needed
improvement in that area as well.

19.  His rater deemed that his performance “Met Requirements” and that he
should be promoted with his contemporaries.

20.  His SR placed him in the third block of his SR profile, below center
of mass and indicated that his performance had been mediocre.  The report
was referred to the applicant and he declined the opportunity to make
comments.

21.  The applicant was subsequently transferred back to Fort Ord and on
28 August 1992, a memorandum was dispatched by the Total Army Personnel
Command (PERSCOM) to the applicant and his commander informing them that a
Department of the Army Active Duty Board had determined that the applicant
should be involuntarily released from active duty under the provisions of
Army Regulation 635-100, chapter 3, section XII, due to failure to meet
minimum standards for retention.

22.  The applicant was also informed that he was not entitled to separation
pay under the provisions of section 1171, Title 10, United States Code.
However, if he was on active duty on 14 September 1981, he would be
entitled to Readjustment Pay as determined by the local Finance and
Accounting Office.

23.  Accordingly, he was honorably REFRAD on 2 October 1992 under the
provisions of Army Regulation 635-100, paragraph 3-49A for failure to meet
minimum standards for retention.  He had served 8 years, 2 months and 9
days of active duty as a warrant officer and 8 years, 5 months and 20 days
of prior active service for a total of 16 years, 7 months and 29 days of
active service.  He was transferred to the USAR Control Group (Individual
Ready Reserve) and he received $15,000 in Readjustment Pay.

24.  On 17 September 1998, a memorandum was dispatched to the applicant
from the Total Army Personnel Command in St Louis which informed the
applicant that he was considered by a Department of the Army Promotion
Selection Board and that he was not selected.

25.  On 23 August 1999, a memorandum was dispatched to the applicant from
the Total Army Personnel Command in St Louis which informed the applicant
that he was again considered by a Department of the Army Promotion
Selection Board and that he was again not selected, which constituted a
second non-selection and removal from an active status of the Reserve
Component.

26.  Accordingly, the applicant was discharged from the USAR on 29
September 1999.

27.  On 2 September 2005, the Human Resources Command – St Louis     (HRC-
STL) dispatched a letter to the applicant in response to his application
for Non-Regular Retired Pay Benefits.  Officials at HRC-STL informed the
applicant that while he had completed the minimum years of qualifying
service, he had not completed the minimum number of 8 qualifying years of
service as a member of the Reserve Component that was necessary to qualify
for Retired Pay at age 60 under the current law.  He was advised to apply
to this Board for relief.

28.  A review of the available records shows that during the period of 4
October 1992, when he was REFRAD and transferred to the USAR, until he was
discharged as a result of nonselection for promotion on 29 September 1999,
he had only 2 qualifying years of Reserve Component service for retirement
purposes.  Additionally, there is no evidence in the available records to
show that he was ever issued a 20-year letter.

29.  Army Regulation 135-180 implements the statutory authority governing
the granting of Retired pay to soldiers of the Reserve Components.  It
states, in pertinent part, that to be eligible for Retired pay, a person
must have attained age 60, have completed a minimum of 20 qualifying years
of service and have served the last 8 years of his or her qualifying
service as a Reserve Component soldier.  Service creditable as a qualifying
year is one in which the Reservist is in an active status and earns a
minimum of 50 qualifying points during the retirement year.

30.  The Fiscal Year 2003 National Defense Authorization Act, section 631,
amended Title 10, United States Code, section 12731 to permanently reduce
requirement from last 8 years to last 6 years of qualifying service in
Reserve Component to be eligible for non-regular Retired Pay.  Those who
had performed at least 20 years of qualifying service before 5 October
1994, would still be required to have eight years.  Additionally, the
effective date for the change was 1 October 2002, with the proviso that no
benefit shall accrue to any person before that date by reason of the
change.

31.  Army Regulation 635-100, in effect at the time, served as the
authority for officer separations.  It provided, in pertinent part, that
the Department of the Army Active Duty Board (DAADB) is the Army’s tool for
ensuring that only a Reserve Component (RC) officer who consistently
maintains high standards of performance, efficiency, morality and
professionalism is permitted to serve on active duty.  It provides, in
pertinent part, that local commanders, Commander, PERSCOM, Chief, Army
Reserve, Commander, Army Reserve Personnel Center and the Director, Army
National Guard may recommend that a RC officer be considered by a DAADB to
determine if the officer’s manner of performance, degree of efficiency, or
misconduct constitutes consideration for involuntary separation.  Files
referred to the DAADB will be identified based on several criteria, some of
which include individuals with less that 18 years of active Federal service
as of the projected separation date, individuals who do not demonstrate the
requisite degree of efficiency, and individuals who do not demonstrate the
requisite manner of performance, when compared to contemporaries,
particularly in recent years of service.  While not inclusive, the DAADB
action will be initiated when there is a downward trend in overall
performance resulting in an unacceptable record of efficiency or a
consistent record of mediocre service or if the individual demonstrates a
failure to keep pace or to progress with contemporaries or a low record of
efficiency when compared to contemporaries of the same grade, branch and
length of service.  While separations under this section are involuntary,
there is no entitlement to separation pay.

32.  Department of the Army Circular 635-92-1 outlines eligibility for
separation pay.  It provides, in pertinent part, that officers who are
involuntarily separated for substandard performance are not eligible for
separation pay.

DISCUSSION AND CONCLUSIONS:

1.  While the Board is sympathetic to the applicant’s present situation, he
has submitted no evidence to substantiate that he was incorrectly informed
that he had sufficient service to qualify for retirement at age 60.
Accordingly, in the absence of evidence to show that an error or injustice
occurred, the Board finds no basis to waive the 6 years of service in the
Reserve Components he needed to qualify for Retired Pay benefits.

2.  The applicant’s contention that he was not informed that he had to
serve the last 8 years in the Reserve Components has been noted and found
to be without merit.  There is no evidence to show that the applicant was
issued a 20-year letter informing him that he was eligible to apply for and
receive retired pay at age 60, nor is there any evidence to show that he
inquired as to his eligibility prior to his discharge.  Additionally, he
has provided no evidence to show that he was improperly informed that he
was retirement eligible when he was discharged from the USAR.

3.  It appears that the applicant had more than sufficient opportunity to
acquire the creditable years of service he needed to attain eligibility for
retirement and he simply did not do so. To waive the 6 years at this time
would afford him a benefit that is not afforded to others in similar
circumstances.

4.  The applicant’s contention that he was unjustly REFRAD has been noted.
While there is no explanation in the available records to show why the
DAADB selected him for REFRAD, it is reasonable to presume that it was
based on the  downturn in performance and efficiency that is reflected in
his evaluation reports. Accordingly, he was properly REFRAD in accordance
with the applicable regulations with no indication of any violations of his
rights.

5.  The applicant’s contention that he should have received separation pay
instead of readjustment pay has been noted and found to be without merit.
The applicable laws and regulations governing separation pay specify that
separation pay is not authorized in cases such as the applicant’s.
Accordingly, he properly received the readjustment pay he was authorized.


6.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____JS __  ___CD  _  ___JM __  DENY APPLICATION








BOARD DETERMINATION/RECOMMENDATION:

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 Slone_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016829                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060711                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |19921002                                |
|DISCHARGE AUTHORITY     |AR 635-100, CH 3, PARA 3-49A            |
|DISCHARGE REASON        |FAILURE TO MEET RETENTION STANDARDS     |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |                                        |
|1.135.0200              |                                        |
|2.135.0400              |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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