BOARD DATE:	  1 June 2010

		DOCKET NUMBER:  AR20090018469 


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, the letter revoking his Notification of Eligibility for Retired Pay at Age 60 (20-year letter), dated 9 July 2009, be voided.

2.  The applicant states in July 2009 when he asked for assistance with his retirement packet he was informed he was ineligible for retired pay and all of his other retirement points documents were worthless and would be revoked.  In his opinion, he would have thought an individual would have been notified much earlier if he or she were ineligible for retired pay and given the opportunity to correct the discrepancy and not wait until the last moment.  In 2000, he was present at the U.S. Army Reserve Personnel Center (ARPERCEN) when another Soldier was told by several individuals working in the retirement points section that if he did not have the correct amount of "good" points, some points from other years could be moved around in order to give him the ability to achieve 20 "good" years.  

3.  The applicant states in September 2006 he received his annual retirement points statement in the mail and it contained fewer points than he had previously.  He indicates he filed a Congressional inquiry, he did not voluntarily resign his commission, and he was told either to resign or face a court-martial.  When he replied he would take the resignation, he was instructed to write a scripted statement saying it was voluntary and not under pressure.  Three weeks later while at a weekend drill, he was handed a travel voucher to complete.  He claims had he been given the travel voucher to complete before he tendered his resignation, he would not have resigned.  

4.  The applicant states when he was passed over for major the second time he was told with 12 years as a commissioned officer and no promotion, his military career was over.  He informed them if they added the 6 years he was an enlisted member, he would have over 18 years and would be locked in for 20, even if he had been passed over for promotion.  In 1991, he performed home-station annual training for which he was paid with a check by mail.  Several weeks later he was sent an additional check which he cashed.  Subsequently, he was charged with two counts of defrauding the Army of money and discharge proceedings were initiated.  He contends a colonel at the Pentagon told him the discharge process would be reversed and he was told to contact a unit and drill for points only until the discharge situation was worked out.  He goes on to state when he was discharged on 4 June 1992 he was 3 months and 3 days from his retirement year ending date of 7 September 1992.  Each time he received a retirement points statement, the total number of qualifying years became lower until he received one that stated he had 19 years, 2 months, and 6 days.  He did not have a problem with the retirement points section until he filed for additional retirement points.

5.  The applicant further states he submitted his retirement points according to Army regulations on a DA Form 1380 (Record of Individual Performance of Reserve Duty Training) and he was later told he would have to submit his retirement points with the published orders assigning him to that particular unit.  He indicates in 1999 he was issued a 20-year letter and at no time did he try to use any type of deception or coercion in order to get his 20-year letter.  When he drilled for points only, he was never informed or made aware that orders have to be published.  He requests that authentic orders be issued and he be allowed to drill at ARPERCEN until he satisfies his obligation for a 20-year letter.

6.  The applicant provides:

* a letter from the Director, Personnel Actions and Services, Transition and Separations Branch, U.S. Army Human Resources Command (HRC), St. Louis, Missouri, dated 8 February 2007,
* U. S. Army Reserve Personnel Command (ARPC) Forms 249-2-E (Chronological Statement of Retirement Points), dated 7 September 2006, 28 September 2006, 12 October 2006, and 2 February 2007
* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 4 February 1999
* letter from the Chief, Transition and Separations HRC, St. Louis, Missouri, dated 9 July 2009


* letters to the Secretary of the Army, dated 30 September 2009 and 6 October 2009
* memorandum of consideration, dated 24 February 1993
* letter to a Member of Congress, dated 29 October 2006

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 16 August 1950.  Having prior enlisted service in the Army of the United States and the U.S. Army Reserve (USAR), the applicant was appointed as a second lieutenant in the USAR on 8 September 1978.  He was promoted to captain on 15 July 1983.

2.  On 13 April 1992, the applicant requested resignation for the good of the service.  He was discharged under other than honorable conditions (UOTHC) on 4 June 1992.  In 1997, the Army Discharge Review Board (ADRB) upgraded the applicant's discharge to general under honorable conditions.

3.  The applicant's Notification of Eligibility for Retired Pay at Age 60 is dated 4 February 1999.

4.  The applicant provided a USAR chronological statement of retirement points, dated 7 September 2006, which shows he completed 20 years and 3 days of qualifying service for retired pay as of 12 April 1999.  This form shows his last qualifying year as retirement year ending (RYE) 7 September 1992.

5.  The applicant provided a USAR chronological statement of retirement points, dated 28 September 2006, which shows he completed 20 years and 1 day of 
qualifying service for retired pay as of 12 April 1999.  This form also shows his last qualifying year as RYE 7 September 1992.

6.  The applicant provided USAR chronological statements of retirement points, dated 12 October 2006 and 2 February 2007, which show he completed 19 years, 2 months, and 6 days of qualifying service for retired pay as of 4 June 1992.  These forms shows he earned 49 retirement points and completed a partial retirement year as of 4 June 1992.

7.  The applicant provided a letter from the Director, Personnel Actions and Services, Transition and Separations Branch, HRC, St. Louis, Missouri to a Member of Congress, dated 8 February 2007.  This letter states:

* the applicant resigned his commission in lieu of court-martial and was discharged on 4 June 1992

* in 1997 the ADRB upgraded his discharge to a general discharge
* the applicant's service record was thoroughly reviewed and all applicable retirement points documents have been applied to his account
* investigation into the applicant's statements found he has been properly credited with all membership points and all points earned during his military service as reflected on his USAR chronological statement of retirement points, dated 2 February 2007
* the applicant's record previously reflected points either earned after his discharge or points documents that were not acceptable and misrepresented
* the applicant's Notice of Eligibility for Retired Pay at Age 60 will be revoked
* the applicant is not eligible for retirement

8.  On 9 July 2009, the Chief, Transition and Separations, HRC, St. Louis, Missouri, informed the applicant by letter that his 20-year letter, dated 4 February 1999, was revoked.  The letter also states the revocation was based on the fact he was involuntarily discharged from the Army prior to completing 20 qualifying years of service and he was not entitled to retired pay and benefits at age 60.

9.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized.  Only Ready Reserve Soldiers and Active Standby Reserve are authorized retirement point credit. 

10.  Title 10, U.S. Code, section 12738(a), states that after a person is notified that he or she has completed the years of service required for eligibility for retired pay, the person's eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service unless it resulted directly from the fraud or misrepresentation of the person.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received a 20-year letter, dated 4 February 1999.  By law, once a member has received notification of eligibility for retired pay, that eligibility may not be denied or revoked unless it resulted directly from the fraud or misrepresentation of the person.





2.  The applicant's contentions and the two 2006 retirement points statements which show he completed over 20 years of qualifying service for retired pay were noted.  However, those statements carry him out beyond 4 June 1992, the date he was discharged.  He provides no evidence to corroborate his contention that he was told the discharge process would be reversed or that it was reversed.  It is not reasonable to believe that an officer, knowing he has been discharged, would think he could drill for points without something (orders, etc) returning him to an active status in hand.

3.  Since there is no evidence which shows the applicant refuted the information in the 8 February 2007 letter from the Director, Personnel Actions and Services, Transition and Separations Branch, HRC, St. Louis, Missouri, to a Member of Congress, it appears his 20-year letter was properly revoked on 9 July 2009.  Therefore, there is insufficient evidence with which to grant the relief requested.

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)                                         AR20090018469



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ABCMR Record of Proceedings (cont)                                         AR20090018469



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