RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20070018981 


	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.  




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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, that his mandatory removal date (MRD) be adjusted to 17 January 2015, the date he reaches age 60.

2.  The applicant states, in effect, he would like for his MRD to be adjusted beyond his MRD, so he can be eligible for unreduced annuity at age 60.  He started to work in a temporary position as a military technician, on 27 May 2007.  He submitted his request for an extension of his MRD approximately 
3 weeks after he became eligible to apply for his extension.  He believes the approval authority misunderstood his request to mean he wanted an extension beyond his MRD to age 62.  He was only qualified to submit his request after he started the temporary position as a military technician; therefore, he could not have applied for the extension more than 6 months from his MRD.

3.  The applicant provides a copy of an Inspector General (IG) request dated  
26 November 2007; excerpts from Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers); Army Regulation 140-315 (Employment and Utilization of U.S. Army Reserve Military Technicians); his military technician exception checklist with packet; and a memorandum from Headquarters, United States Army Reserve Command (USARC) dated 5 October 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows he was appointed a second lieutenant in the United States Army Reserve (USAR) on 19 August 1977.  He served continuously throughout his career as a Reserve Officer, being transferred amongst Reserve Component units, and was promoted to the rank of colonel on 11 February 2002.

2.  He was assigned to the 84th Training Command (Leader Readiness), Fort McCoy, Wisconsin, effective 23 May 2007.  On 19 August 2007, the applicant reached his 30 years as a commissioned officer with a MRD of 1 September 2007.  His date of birth is 17 January 1955.

3.  His record shows on 5 June 2007 he submitted a request for exception to be retained in an active military status beyond 30 years of service to age  
60 because he was a dual status military technician.

4.  On 5 October 2007, the memorandum from Headquarters, USARC shows the applicant's request was returned to him without action.  In the memorandum it referenced Title 10 United States Code (USC), section 14507, which directs that Reserve officers of the Army in the grade of colonel must be removed from the Reserve active-status list for years of service the first day of the month after the month in which the officer completed 30 years of commissioned service.  The applicant had reached his 30 years commissioned service on 19 August  
2007 with a MRD of 1 September 2007.  Also, there are no provisions in 10 USC 14507 or other applicable sections of the public law such as 10 USC  
10216, 10218, or 14702 that allow for MRD extension after the fact. 

5.  In the memorandum it was further stated that the applicant was eligible for an unreduced annuity at age 62, which means his MRD would have to be extended to 17 January 2017.  However, Army Regulation 140-135 does not provide any provisions to go beyond age 60.

6.  The IG request that the applicant submitted states, in effect, the position he applied for was a temporary position which was to last 12 to 15 months, that was later modified to 13 months.  He submitted the exception to extend his MRD packet through his command and after the packet left his command it went into an abyss.  He submitted his extension request to his command two weeks after he started in the military technician position.  He had requested for an extension to age 60 not 62.  He believes he would be eligible for an unreduced annuity at age 57 if he works in the military technician program for 5 years.  The Chief, Army Reserve (CAR) can grant his request for extension to age 60 in accordance with Army Regulation 140-315, paragraph i(4).

7.  Army Regulation 140-315 states, in pertinent part, that military technicians appointed after 8 December 1983 are required as a condition of employment to maintain continuing membership in the USAR unit in which employed or if employed in other than a Troop Program Unit (TPU), be a member of any element of the USAR Selected Reserve.  Failure to meet this military obligation constitutes failure to meet this condition of employment.  Any USAR military technician who reached their MRD may be retained in active status provided they are not eligible for an immediate civil service retirement annuity, will attain eligibility for an immediate civil service retirement annuity at age 60 (emphasis added), is fully qualified for retention on military service, and may be retained to age 60 or until he/she attains eligibility for an immediate civil service retirement annuity, whichever is earlier.  The military technician must submit their request through channels to the CAR for approval at least 6 months prior to the date the military technician would otherwise be removed from the Selective Reserve.



8.  The Federal Employees Retirement System (FERS) provides, in pertinent part, to be eligible to receive retirement benefits an employee must reached the minimum retirement age (MRA) based on their date of birth.  The MRA for any employee who was born in 1953 through 1964, is age 56.  In order to receive an immediate retirement benefit, at age 60 you must have 20 years of service and, at age 62 you must have 5 years of service.  If the employee retires at his/her MRA with at least 10 years, but less than 30 years of service, the benefit will be reduced by 5 percent a year for each year under age 62, unless they have  
20 years of service and the benefit starts when you reach age 60 or later.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests that his MRD be adjusted to 17 January 2015, the date he reaches age 60, so he can be eligible for an unreduced annuity at age 60.

2.  However, Title 10, USC 14207 directs that Reserve officers of the Army in the grade of colonel must be removed from the reserve active-status list for years of service the first day of the month after the month in which the officer completed 30 years of commissioned service and there are no provisions in the law for an MRD extension after the fact.  Also, the applicable regulation does not provide any provisions to extend a military technician beyond age 60.

3.  The applicant is now age 53 based on his date of birth of 17 January 1955.  He is currently employed as a military technician in a temporary position which expires in 13 months. There is no guarantee that the position would be modified to become a permanent position.  In accordance with regulatory procedure, military technicians appointed after 8 December 1983 are required as a condition of employment to maintain continuing membership in the USAR unit in which employed or if employed in other than a Troop Program Unit (TPU), and be a member of any element of the USAR Selected Reserve.  Failure to meet this military obligation constitutes failure to meet this condition of employment.  The applicant made the choice to apply for a military technician position being well aware of his MRD.

4.  Furthermore, according to FERS, the earliest the applicant would be eligible for an immediate civil service retirement annuity is at age 56 (his MRA) with at least 10 years of service.  Since the applicant did not enter on duty as a military technician until 29 May 2007, he will not have 10 years of service completed by his 56th birthday in 2011.  He will also not achieve the required 20 years of service to qualify for an immediate annuity when he reaches age 60 in 2015.

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__PHM __  __KSJ__  __JGH__   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.




      ___        PHM                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070018981



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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