IN THE CASE OF:	  

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090013191 


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 a waiver of the requirement to serve the last 6 years in the Reserve Component to be eligible for retired pay for nonregular service at age 60.

2.  The applicant states that he decided to leave active duty because he was offered a good job, but joined the U.S. Army Reserve (USAR) so he would be able to use his over 18 years of active duty to qualify for retired pay for nonregular service.

3.  He was told by personnel in his U.S. Army Reserve (USAR) unit that he qualified for retired pay after being assigned to the unit for over 5 years, so he transferred to the Retired Reserve.  With 23 years of qualifying service for retired pay, he believed that he was fully eligible for retired pay at age 60.

4.  He applied for retired pay after he turned age 60.  His request was denied because he had not served the last 6 years in a Reserve Component.

5.  The applicant says that not one person told him about the requirement to serve the last 6 years in a Reserve Component to qualify for retired pay for nonregular service and, if they had, he certainly would have delayed his transfer to the Retired Reserve.

6.  The applicant provides his retired pay request and the denial of that request.


CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the USAR in pay grade E-5 on 26 August 1992 with 18 years, 5 months, and 13 days of prior active service in the Regular Army and 4 years, 8 months, and 6 days of prior inactive service.  

2.  On 24 September 1996, the applicant, then in pay grade E-6, was counseled that he was being involuntarily separated from a troop program unit in the Selected Reserve for reasons other than unit inactivation, reorganization, or relocation.  

3.  On 26 March 1997, the applicant was involuntarily transferred to the Retired Reserve.

4.  The applicant's records do not contain evidence which would show why he was involuntarily separated from the Selected Reserve.

5.  The applicant's Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points) shows the applicant earned qualifying years for retired pay during his retirement years ending (RYE) 25 September 1993, 1994, 1995, and 1996, which gives him his last 4 qualifying years in the Reserve Component.  This form shows that he had a total of 23 years, 1 month, and 15 days of qualifying service.

6.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service) implements the statutory authority governing what constitutes qualifying service for retired pay for nonregular service in the Reserve Components.  Chapter 2, in effect at the time, stated that to be eligible for retired pay, an individual must have attained the age of 60 and completed a minimum of 20 years of qualifying service, the last 6 of which are served in a Reserve Component.  A qualifying year is defined as a year of service during which a Reserve member earns at least 50 retirement points.  For service in an Active Component, a qualifying year of service is a full calendar year consisting of 365 or 366 days, as appropriate.

7.  Title 10, United States Code (USC), Chapter 1223 (Retired Pay for Non-Regular Service), Section 12731 (Age and Service Requirements) provides, in pertinent part, that a person is entitled, upon application, to retired pay if the 



person is age 60 and has performed at least 20 years of qualifying service.  While a qualifying year is determined to be a year in which a minimum of 
50 retirement points have been credited for a reservist, it is a full year (365 or 366 days, as applicable) for a member of the Regular Army.

8.  Section 12731 of Title 10 USC further provides that individuals who completed the 20-year qualifying service requirements before the end of the 180-day period beginning on the date of the enactment of the National Defense Authorization Act for Fiscal Year 2005, must have performed the last six years of qualifying service while a member of any category named in section 12732 (a)(1) of this title, but not while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve.  

9.  In the processing of this case, the Defense Finance and Accounting Service (DFAS) was contacted and verified that the applicant accepted a Special Separation Benefit (SSB) of $50,043.24 when he separated from active duty in 1992.

DISCUSSION AND CONCLUSIONS:

1.  There is no "exception to policy" authority to authorize retired pay to Reserve members who did not complete their last 6 qualifying years in a Reserve Component.  The last 6 year rule is a provision of law.

2.  While the applicant states that he would have delayed his transfer to the Retired Reserve if he had known he had to served the last 6 years in a Reserve component, he was involuntarily separated.  When a Soldier is being involuntarily separated, the Soldier does not specify the date of the separation.  As such, the applicant's contention that he would have delayed his transfer to the Retired Reserve if he knew that he was not yet eligible for retired pay at age 60 is not accepted.

3.  The applicant himself states that he left active duty with over 18 years of active service because of a lucrative job opportunity.  At that time, Congress had limited retirements for nonregular service to Soldiers who performed duties in the Army Reserve and Army National Guard by establishing a law requiring Soldiers to have served their last 6 years in a Reserve component.  Therefore, the applicant was required to enlist in a Reserve component and serve at least 6 qualifying years in that Reserve component in order to qualify for retired pay for nonregular service.  While it is unfortunate that the applicant was involuntarily separated prior to establishing eligibility for retired pay for nonregular service, he was compensated for his active duty service with over $50,000.00.

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)                                         AR20090013191



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ABCMR Record of Proceedings (cont)                                         AR20090013191



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