RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060009869 


	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.  


X
	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 show he completed 20 qualifying years of service for non-regular Reserve retirement pay at age 60.  

2.  The applicant states, in effect, that he was assigned to an over strength unit and was told by the command that he would be given credit for one year and eight months in order to reach 20 years of service for retirement purposes if he accepted early retirement.  However, this information was erroneous and neither his unit nor the United States Army Reserve (USAR) awarded him the retirement points needed to complete his 20 qualifying years of service for retired pay purposes.  He now requests that he be granted two years service credit with a minimum of 50 points per year for the periods 16 May 1997 through 15 May 1998 and 15 May 1999 through 15 May 2000, and that his record be corrected to show he completed 20 years of qualifying service for Reserve retirement purposes.  

3.  The applicant provides the following documents in support of his application:  Self Authored Statements dated 8 June 2006 ,6 June 2005 and 19 August 2004 respectively; Department of Crime Control and Public Safety Office of the Adjutant General Memorandum, dated 4 February 1998; Reserve Component Supplemental Survivor Benefit Plan Election Certificate (DARP Form 3858); Survivor Benefit Plan Election Certificate (DD Form 1883); 7th Battalion, 
95th Regiment, 4th Brigade, 95th Division Memorandum, dated 22 October 
1996; United States Army Human Resources Command, St. Louis, Missouri 
(AHRC-St. Louis) Orders Number P03-683070, dated 20 March 2006; Chronological Statement of Retirement Points; AHRC-St. Louis Memorandum, dated 2 September 2005; and Noncommissioned Officer Evaluation Report 
(DA Form 2166-7).

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was inducted into the Army of the United States (AUS) and entered active duty on 16 September 1969.  He served on active duty in this status for 2 years until being honorably released from active duty (REFRAD) on 15 September 1971.  At that time, he was transferred to the, United States Army Reserve (USAR) Control Group to complete his military service obligation (MSO).   

2.  On 2 September 1975, he was honorably discharged from the USAR after completing his MSO. 

3.  On 16 May 1981, the applicant reenlisted in the USAR and continuously served in that status until being transferred to the Retired Reserve, in the rank of master sergeant (MSG), on 2 October 1997. 

4.  On 19 December 1997, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15 Year Letter).  This notification stated that he was eligible to receive retired pay at age 60 based on the completion of 15, but less than 20 years, of qualifying service.  It further stipulated that he was not entitled to earn additional points towards non-regular retired pay unless specially authored by the Secretary of the Army, and that his retired pay at age 60 would be based only on points earned prior to transfer to the Retired Reserve.

5.  The applicant's Official Military Personnel File (OMPF) contains a copy of a Reserve Personnel Accounting System (RPAS) Chronological Statement of Retirement Points, dated 20 March 2007, which shows the applicant completed a total of 18 years, 4 months, and 17 days of qualifying service for Reserve retirement purposes between 16 September 1969 and 2 October 1997, the date of his transfer to the Retired Reserve.  

6.  A 2 September 2005 Memorandum from the Supervisor, Retirements and Annuity, Transition and Separations Branch, AHRC-St. Louis indicated that the applicant was issued a "Notification of Eligibility for Retired Pay at Age 60" letter by the North Carolina (NC) Army National Guard (ARNG) and that the letter appeared to be issued based on the downsizing of the applicant's unit under the provisions of Title 10 of the United States Code, Section 12731a (10 USC 12731a), based on his completion of at least 15, but less than 20 years of qualifying service for retirement.  It further indicates that service credit could not be granted to the applicant for time he did not serve or that is not documented in his official files.

7.  The applicant's Military Personnel Record Jacket (MPRJ) contains 
AHRC-St. Louis Orders Number P03-683070, dated 20 March 2006.  These orders placed the applicant on the AUS Retired List, in the rank of MSG, effective 29 July 2006.


8.  Title 10 of the United States Code, section 12731 provides the legal authority for age and service requirements for non-regular retired pay.  It states, in pertinent part, that members are entitled to retired pay when they are at least 
60 years of age and have performed at least 20 years of service.  Section 12731a, in effect at the time of the applicant's transfer to the Retired Reserve, provided Temporary Special Retirement Qualification Authority.  It authorized the granting of non-regular retirement to members who completed at least 15, but less than 20 years of qualifying service, during the period 23 October 1992 through 31 December 2001, under policies established by the Secretary concerned for Soldiers involuntarily separated to support the drawdown of military forces.  The provision of this law was applicable to RC Soldiers impacted by unit downsizing.  The law provided no provisions for granting additional service credit for service not performed. 

9.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers.  Paragraph 2-2 outlines the criteria for earning retirement points.  It states, in pertinent part, that retirement points may be earned by USAR Soldiers for active duty (AD), or while in an active Reserve status, for active duty for training (ADT), initial active duty for training (IADT), involuntary active duty for training (involuntary ADT), annual training (AT), inactive duty training (IDT), and Reserve membership.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that he be credited with retirement points that would result in his having 20 years of qualifying service for non-regular retirement was carefully considered.  However, there is insufficient evident to support granting the requested relief.  

2.  The evidence of record confirms that the applicant received a Notification of Eligibility for Retired Pay at Age 60 (15-Year Letter) and was transferred to the Retired Reserve in 1997, under Temporary Special Retirement Qualification Authority provisions of the law.  This special provision of the law allowed for granting non-regular retirement to RC Soldiers who completed 15, but less than 20 years, of qualifying service and who were impacted by unit downsizing.  The law did not provide provisions that allowed for granting additional service credit for service not performed.  The applicant was ultimately placed on the AUS Retired List at age 60 and is receiving retired pay as a MSG with 18 years, 
4 months, and 17 days of qualifying service, which is the amount of qualifying service he had completed upon his transfer to the Retired Reserve, as evidenced by the RPAS statement on file.  
3.  By regulation 50 points per year is required to earn a qualifying year for Reserve retirement purposes.  Retirement points may be earned by USAR Soldiers for AD, or while in an active Reserve status, for ADT, IADT, involuntary ADT, AT, IDT, and for Reserve membership.  Absent any evidence that the applicant completed additional qualifying service that is not credited on his RPAS statement, there is an insufficient evidentiary basis to grant him service credit for qualifying service he did not perform.  

4.  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

___X_  ___X _  __X__  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.




_____X____
          CHAIRPERSON




INDEX

CASE ID
AR20060009869
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/27
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1997/10/02
DISCHARGE AUTHORITY
 . . . . .  
DISCHARGE REASON
15 year retirement
BOARD DECISION
Deny
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.

2.

3.

4.

5.

6.