IN THE CASE OF:	  

		BOARD DATE:	        17 MARCH 2009

		DOCKET NUMBER:  AR20080009050 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his retirement points be adjusted and that he be granted non-regular retirement at age 60. 

2.  The applicant states, in effect, that if he had served 12 years of active service and 8 years of service in the United States Army Reserve (USAR) he would be eligible; however, because he served 14 years of active service and 6 years of USAR service, he is being unjustly denied his retirement.  He goes on to state that he believes it to be unfair that he is being denied his retirement when he served 2 more years on active duty than most Soldiers.  He also states that he would accept pay for retirement points of 12 years of active service and 8 years of USAR service if the Board is willing to reconsider the Army's position on the matter.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 21 February 1947 and enlisted in the Regular Army on 30 August 1968.  He remained on active duty through a series of continuous reenlistments and was honorably discharged on 3 April 1984, due to the expiration of his term of service (ETS).  He had served 15 years, 7 months and 4 days of total active service.


2.  The applicant's records, though somewhat incomplete, indicate that he enlisted in the USAR on 27 May 1984 and served in a troop program unit as a food service specialist.  He attained 6 qualifying years of service during the retirement years ending (RYE) 26 May 1985 through 26 May 1990.

3.  The applicant stopped participating in RYE 26 May 1991 and was awarded only membership points until he was transferred to the Retired Reserve on 15 February 1996.  The applicant had 22 qualifying years of service and was never issued a 20-Year letter.

4.  In June 2007, the applicant's application for non-regular retired pay was denied by officials at the Human Resources Command - St. Louis (HRC-STL) and the applicant was informed that his application was denied because he had not completed his last 8 qualifying years in the Reserve Component.  He was also advised that if he could verify that he had points to qualify for 2 additional years in the USAR he would qualify for retirement.  He was further advised to apply to this Board.

5.  In the processing of this case a staff advisory opinion was obtained from officials at HRC-STL Personnel Actions and Services Directorate which opines that the applicant had 22 qualifying years of service; however, his last 8 years of qualifying service were not served in the Reserve Component and thus he was ineligible for a non-regular retirement.  The advisory opinion was provided to the applicant for comment and to date, no response has been received by the staff of the Board.

6.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) 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 (during the period in question) 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.

7.  The Fiscal Year 2003 National Defense Authorization Act, section 631, amended Title 10, United States Code, section 12731 to permanently reduce the 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. 

DISCUSSION AND CONCLUSIONS:

1.  While the applicant’s present situation is indeed unfortunate, 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 2 years of service in the Reserve Components he needed to qualify for Retired Pay benefits.

2.  It appears that the applicant had more than sufficient opportunity to acquire the 2 creditable years of service he needed to attain eligibility for retirement and he simply did not do so.  

3.  Therefore, in the absence of evidence to show that the applicant was improperly informed/advised that he had sufficient qualifying service to qualify for non-regular retired pay before he stopped participating, there appears to be no basis to grant his request.

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.

      
      
      _______ _ XXX  _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080009050



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ABCMR Record of Proceedings (cont)                                         AR20080009050



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