IN THE CASE OF:	  

		BOARD DATE:	  5 November 2009

		DOCKET NUMBER:  AR20090009177 


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, transfer to the Retired Reserve.  He also requests, in effect, correction to his records to show his award of the Meritorious Service Medal.

2.  The applicant states, in effect, after serving 18 years he should have been allowed to complete 20 years of service to be eligible for retirement and to use the PX [Post Exchange] and commissary.  He also states that he was not allowed to drill and make points for those years.  He further states, in effect, that he was awarded the Meritorious Service Medal.

3.  In support of his application, the applicant provides copies of a DA Form 638 (Recommendation for Award) and a Meritorious Service Medal Certificate.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he was commissioned in the U.S. Army Reserve (USAR) as a first lieutenant effective 20 June 1990, with prior enlisted service.  He was promoted to captain effective 19 June 1994.

2.  The applicant was considered and not selected for promotion to major by the 2003 and 2004 Reserve Components Selection Boards.  

3.  The applicant was issued a Notification of Promotion Status memorandum, dated 25 May 2004, advising him of his second non-selection for promotion to 
major.  The memorandum also advised that as a result of this second non-selection, he must be discharged in accordance with Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Detailed, and Transfers), no later than 1 November 2004, unless he was eligible for and requested transfer to the Retired Reserve.

4.  The applicant was issued orders, dated 10 August 2004, honorably discharging him from the USAR as a captain, effective 1 November 2004.

5.  On 23 August 2004, the applicant was issued orders voiding his 10 August 2004 orders based on his Selective Continuation (SELCON) board selection.

6.  The applicant reached age 60 on 3 July 2006.

7.  The Human Resources Command, Soldier’s Management System (SMS), St. Louis, MO, shows that on 12 November 2008, the applicant was advised of his selection for retention in the USAR by the 2003 SELCON Board.  He elected to accept the selection and be retained in the USAR.  The system was updated to show SELCON retention until 30 June 2010.

8.  On 13 November 2008, the SMS was updated to show the applicant’s retention until completion of 20 years of commissioned service for captain to comply with a message from the Assistant Secretary of the Army, Manpower and Reserve Affairs.

9.  The applicant was issued orders honorably discharging him from the USAR effective 30 November 2008, under the provisions of Army Regulation 135-175 (Army National Guard and Army Reserve – Separation of Officers).  A staff member of the Separations and Transitions Branch, HRC, St. Louis, verified that the applicant was discharged from the USAR for maximum age.

10.  The applicant submitted a copy of a DA Form 638, dated 9 January 2009, approving him for award of the Meritorious Service Medal, for meritorious service performed as a commissioned officer in the USAR for over 20 years, for the period 7 June 1996 to 1 August 2006, by Permanent Orders 09-009-001.  The applicant also submitted a copy of the resulting certificate.

11.  The applicant's ARPC Form 249-E (Chronological Statement of Retirement Points), dated 20 August 2009, shows he was credited with 18 years, 11 months, and 12 days of qualifying years for retirement as of 11 November 2008.  The statement also shows he served in an enlisted status in the Regular Army (RA) from 29 September 1966 to 10 September 1969.  He served in an enlisted status 

in the USAR from 11 September 1969 to 29 September 1971 and earned fewer than 50 points of qualifying service during each of these years.  He had a break in service from 30 September 1971 to 19 June 1990, a period of 18 years,
8 months, and 20 days. 

12.  The applicant’s ARPC Form 249-E further shows he was appointed in the USAR as a commissioned officer on 20 June 1990 and he served continually until 30 November 2008.  During that time he earned fewer than 50 points for qualifying service from 20 June 2006 to 30 November 2008.

13.  Army Regulation 135–155 (Reserve Promotions) prescribes the policies and procedures for the promotion of Reserve Component officers.  This regulation specifies that officers in the grade of captain who have failed selection for promotion to major a second time will be removed from active status, unless subsequently placed on a promotion list, selected for continuation, or retained in the Ready Reserve with 18 or more but less than 20 qualifying years of service for retired pay.

14.  Army Regulation 135-155 also specifics that, subject to the needs of the Army, officers pending separation because of having twice failed to be selected for promotion to major, may be selectively continued on the Reserve Active Status List in their present grade.  The Secretary of the Army (SA) may direct a SELCON board to consider officers for continuation when required by the needs of the Reserve of the Army.  A SELCON board must recommend officers for continuation and the SA must approve the recommendation before officers may be continued.  Continuation for captains will normally be 3 years from the approval date of the SELCON.  However, continuation may not extend beyond the date on which the officer completes 20 years commissioned service (captain).  The SA may adjust the period of selective continuation.  An officer not selected for continuation on the expiration of the continuation period established will be discharged, or if eligible and the officer requests, transferred to the Retired Reserve.

15.  Title 10, U.S. Code, sections 12731 through 12739, authorizes 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.  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.

16.  Title 10, U.S. Code, section 12646(a)(1) states that if on the date prescribed for the discharge or transfer from an active status of a Reserve commissioned officer he is entitled to be credited with at least 18, but less than 19, years of service, he may not be discharged or transferred from an active status without his consent before the earlier of (1) the date on which he is entitled to be credited with 20 years of service or (2) the third anniversary of the date on which he would otherwise be discharged or transferred from an active status.

17.  Title 10, U.S. Code, section 12646(d)(1) states subsection (a) does not apply to officers who are discharged or transferred from an active status, in part, because they have reached the age at which transfer from an active status or discharge is required by law.

18.  Title 10, U.S. Code, section 14702(b) states an officer retained under section 14702 may not be retained under this section after the last day of the month in which the officer becomes 62 years of age.  

19.  Army Regulation 600-8-22 (Military Awards), specifies, in pertinent part, that appropriate recognition may be extended to members of the Reserve Component who have distinguished themselves in defense of the United States over a period of many years and those who by their acts or achievements have made major contributions to the Reserve Component.  Awards pertaining to individuals who have been retired or separated from the service will be sent to their forwarding address upon retirement or separation.  There are no provisions for showing any personal decorations, e.g., the Meritorious Service Medal, on separation or discharge orders.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been allowed to complete 20 years of service to qualify for retirement.  The evidence shows the applicant was discharged from the USAR on 30 November 2008, upon reaching his maximum age, as required by law.  On 29 August 2009, he was issued an ARPC Form 249-E showing a credit of 18 years, 11 months, and 12 days of qualifying years of service for retirement.

2.  The evidence also shows the applicant failed to earn sufficient credit for qualifying years from 11 September 1969 to 29 September 1971.  He had a break in service totaling 18 years, 8 months, and 20 days from 30 September 

1971 to 19 June 1990.  He was appointed in the USAR on 20 June 1990 and again he failed to earn sufficient credit for qualifying years from 20 June 2006 to 30 November 2008.

3.  The applicant has provided no evidence to show that an injustice occurred or that he sought other avenues of earning the required points in order to qualify for retirement.  The fact remains, the applicant did not acquire enough points for 20 years of qualifying service.  The applicant needed to complete 20 years of qualifying service to attain eligibility for retired pay at age 60.  Based on the fact that he is not eligible to receive retired pay at age 60, he is ineligible to receive a retired military identification card or entitled to PX or commissary privileges.

4.  The applicant has also failed to show through the evidence submitted with his application, or the evidence of record, that the reason for his discharge from the USAR was incorrect and unjust.  He was properly discharged from the USAR on 30 November 2008 and he has not shown otherwise.  

5.  The applicant submitted documentation that shows he was awarded the Meritorious Service Medal by Permanent Orders 09-009-001.  The applicant was issued orders discharging him from the USAR and in accordance with the governing regulation there are no provisions for showing awards on separation or discharge orders.  Therefore, there is no effective relief for this portion of the applicant’s requested relief.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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
      
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)                                         AR20090009177



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ABCMR Record of Proceedings (cont)                                         AR20090009177



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