RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 January 2007
      DOCKET NUMBER:  AR20060007982


      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. Joyce Wright                  |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Ronald D. Gant                |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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, correction of her records to show
that she was entitled to retired pay at age 60 with completion of 18 years
of qualifying service.

2.  The applicant states, in effect, that she was under doctor's care,
while assigned to the 95th Training Command and that her command needed her
to drill, while performing duties as a unit clerk.  She was unable to
perform her job at that time and was asked to transfer to the Individual
Ready Reserve (IRR).  She states that she had back surgery and was later
scheduled for a physical.  She failed her physical and was sent to Fort
Sill Reynolds Hospital at that time and had not been released from her
doctor and could not lift over 10 pounds.

3.  She further elaborates that she was unable to perform her job due to
surgery and was unable to take the Army Physical Fitness Test (APFT) or
fire her weapon.  She was refused a profile which should have been granted
until she was able to get back on her feet.  She continues to elaborate
that an injustice had occurred.  Her command informed her that her position
had to be filled and that she needed to report for drill or be transferred.
 She was encouraged to voluntarily transfer and did not pursue any action.
Her unit could not or would not assist her yet some Soldiers were offered
an early retirement.  She later gave up but her desire was to complete
20 years if her health permitted her to do so.  She was willing to do her
part but it just did not happen.  She felt that she had lost her retirement
and had completed 18 good years for nothing.

4.  The applicant provides a copy of her separation orders in support of
her request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 31 October 1994, the date of her transfer to the Retired
Reserve.  The application submitted in this case is dated 25 May 2006 but
was received for processing on 7 June 2006.







2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records show she enlisted in the U. S. Army
Reserve (USAR) on 1 July 1974.  The applicant successfully completed basic
combat training at Fort McClellan, Alabama, and advanced individual
training at Fort Benjamin Harrison, Indiana.  On completion of her advanced
training, she was awarded the military occupational specialty (MOS), 75B,
Personnel Administrative Specialist.  Her date of birth (DOB) is 30 August
1946.  She was promoted to sergeant (SGT/E-5) effective 10 April 1979.

4.  She continued to serve through continuous reenlistments.

5.  The applicant was honorably released from the USAR Control Group
(Reinforcement) effective 31 October 1994, under the provisions of Army
Regulation 140-10, paragraph 6-2, for completion of 20 or more years of
Reserve Duty.  She was assigned to the USAR Control Group (Retired)
effective 31 October 1994, in pay grade E-5.

6.  The applicant did not provide the Board with any medical documentation
to support her allegations as expressed in her application to the Board.
Her contentions that her unit asked her to transfer to the IRR due to her
medical difficulties have been noted.

7.  The applicant's Summary of Retirement Points shows that she had
completed 18 years of qualifying service for retirement purposes.  This
statement shows that she earned 29 creditable points for the retirement
year ending (RYE) 30 June 1993 and 16 creditable points for the RYE of
30 June 1994.  Her statement also shows that she had over 18 years service
in which she accumulated in excess of 50 retirement points per year.  She
was not issued, nor eligible to have been issued, a notification of
qualification for retired pay at age 60 (20-Year Letter) prior to her
discharge.



8.  Army Regulation 135-180 prescribes the policy and procedures for
granting retired pay benefits at age 60, under Title 10, United States
Code, chapter 67, sections 1331 to 1337.  This regulation specifies, in
pertinent 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,
and serve the last 6-years of his or her qualifying service as a Reserve
Component Soldier, during the period 5 October 1994 through 31 December
2001, nor do they have to be continuous.  Subsequent to 1 July 1949,
qualifying service is granted for each year of service an individual earns
50 or more retirement points.

9.  Army Regulation 135-180 states in paragraph 2-3, that a 20-Year Letter
will be issued to the Reserve Component Soldier within 1 year after they
complete 20 years of qualifying service for retirement.  This letter will
be issued by the Chief, National Guard Bureau for ARNG Soldiers, and the
Commander, Army Reserve Personnel Command (AR-PERSCOM) for USAR Soldiers.
The letter, once issued, may not be withdrawn or revoked.

10.  Army Regulation 140-10, in effect at the time, 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.

11.  Sections 12731 through 12739 of Title 10, 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 is one in which a Reserve
Soldier earned 50 retirement points or more.  This law further requires
that the last         6 years of qualifying service must in a Reserve
Component between the period 5 October 1994 through 31 December 2001.

12.  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.






13.  Title 10, U.S. Code, sections 1176(b)(1) states that "a reserve
enlisted member serving in an active status who is selected to be
involuntarily separated (other than for physical disability or for cause),
or whose term of enlistment expires and who is denied reenlistment (other
than for physical disability or for cause), and who on the date on which
the member is to be discharged or transferred from an active status is
entitled to be credited with at least 18, but less than 20 years of
service, computed under section 12732 of this title, may not be discharged,
denied reenlistment, or transferred from an active status without the
member's consent before the earlier of the following:  (a) the date on
which the member is entitled to be credited with 20 years of service
computed under section 12732 of this title; or (b) the third anniversary of
the date on which the member would otherwise be discharged or transferred
from an active status."

DISCUSSION AND CONCLUSIONS:

1.  The applicant completed 18 years of qualifying service for retired pay
benefits when she was transferred to the Retired Reserve effective
31 October 1994.  The evidence also shows that she failed to earn 50
retirement points or more during her RYE of 30 June 1993 and 30 June 1994,
which were her last 2 years of service.

2.  The applicant's contentions were considered.  However, her command
should have advised her, at the time of her separation, of Title 10, US
Code, sections 1176(b)(1) regarding the 18/19 year lock in rule and
retained her to serve until she had completed 20 years of service for
retirement purposes.

3.  While the applicant contends that she had medical problems, this issue
is not documented in her record and she did not provide medical
documentation to support her contention her unit asked her to transfer to
the IRR which led to an insufficient number of qualifying years for
retirement purposes.

4.  She is currently 60 years of age.  She is not eligible to return to an
active status to earn additional retirement points.

5.  The applicant has sufficient excess retirement points that can be
redistributed to her unqualifying RYEs of 30 June 1993 and 30 June 1994.
This redistribution of retirement points would not involve awarding
additional retirement points or result in an entitlement to additional
drill pay.



6.  After redistribution of retirement points, a corrected statement of
retirement points should be issued to show that she has completed 20 years
of qualifying service for retired pay with her entitlement to enroll in the
Survivor Benefit Plan (SBP).

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

BOARD VOTE:

__BPI  __  __RDG__  _EM ____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief and to excuse failure to timely file.
As a result, the Board recommends that all Department of the Army records
of the individual concerned be corrected by redistributing excess
retirement points from her prior qualifying RYEs to her RYE of 30 June 1993
and 30 June 1994 and showing these RYEs as qualifying for retirement.

2.  That upon completion of the administrative action required by Paragraph
1, above, that the Army Human Resources Command (AHRC) St. Louis
recalculate the retirement points of the individual concerned, issue her a
corrected Chronological Statement of Retirement Points and certify her
eligibility for non-regular retired benefits at age 60 with entitlement to
enroll in SBP.




                            _____Bernard P. Ingold______
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007982                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070111                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19941031                                |
|DISCHARGE AUTHORITY     |AR 635-200. . . .                       |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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