IN THE CASE OF:	  

		BOARD DATE:	  1 March 2011

		DOCKET NUMBER:  AR20100014903 


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 8 years of qualifying service in a Reserve Component (RC) to be eligible to receive retired pay at age 60.

2.  The applicant states he will reach age 60 on 24 November 2011.  He would need to serve until age 65 to earn an additional 6 years of qualifying service in order to comply with the requirements of Title 10, U.S. Code (USC), section 12739a, which requires that he serve the last 8 years in an RC.  Even though this requirement was eliminated in 2005 he is still not allowed to retire at age 60.

3.  The applicant provides:

* Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points)
* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge/Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* Extract of Title 10, USC, section 12731
* DA Form 199 (Physical Evaluation Board Proceedings)
* DA Form 3349 (Physical Profile)
* DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report)
* Notification of 19 Qualifying Years of Service for Retirement
* Printouts of his retirement points
* DA Form 2A (Personnel Qualification Record)
* DA Form 4856 (Developmental Counseling Form)
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 24 November 1951.

2.  He was inducted into the Army of the United States on 13 April 1971 and he held military occupational specialty 05B (Radio Operator).  He was honorably released from active duty on 1 May 1972 and transferred to the U.S. Army Reserve (USAR) Control Group to complete his remaining service obligation.  He completed 1 year and 19 days of creditable active service.

3.  He enlisted in the Regular Army (RA) on 18 October 1974 for 3 years.  He was honorably discharged on 19 July 1977.  He completed 2 years, 9 months, and 2 days of creditable active service during this period.

4.  He reenlisted in the RA on 20 July 1977 for 6 years.  He followed that with a 3-year reenlistment on 22 April 1983, a 2-month extension on 27 November 1984, and a 4-year reenlistment on 22 January 1988.

5.  He was honorably discharged on 27 July 1992 under the provisions of the Fiscal Year 1992 Early Transition Program with entitlement to the Voluntary Separation Incentive (VSI).  His DD Form 214 shows he completed a total of 
18 years and 10 months of total active service.

6.  He enlisted in the USAR on 28 July 1992 for 3 years.  He followed that with a 3-year reenlistment on 17 January 1996, a 6-year reenlistment on 21 September 2001, and a 9-month extension on 14 July 2008.

7.  On 21 June 2007, the U.S. Army Human Resources Command (HRC), St. Louis, MO notified the applicant that he had completed 19 qualifying years of service for retirement. 

8.  On 24 June 2010, he was honorably released from his USAR unit and transferred to the Retired Reserve.  His ARPC Form 249-E shows he completed 21 years and 21 days of qualifying service for retirement.  However, he only had one "full" good retirement year and one "partial" good retirement year during his period of USAR service between 1993 and 2009.  A good year requires an individual to have earned 50 qualifying points.




9.  An advisory opinion was obtained from HRC in the processing of this case.  An HRC official recommended disapproval of the applicant's request and stated the applicant was ineligible for Reserve retirement.  By law, to be eligible for retired pay at age 60, an RC Soldier must have completed 20 qualifying years of service of which the last 8 years must be in a RC.  A qualifying year is defined as one wherein the RC Soldier has earned 50 retirement points.   The advisory opinion recommended the applicant reenter military service under the Retiree Recall Program in order to complete 20 years of active service.

10.  The applicant was provided this advisory opinion but he did not respond.

11.  Title 10, USC, section 12731 states a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person has attained the eligibility age applicable under the appropriate subsection; has performed at least 20 years of service computed under section 12732 of this title; and in the case of a person who completed the service requirements before 25 April 2005, performed the last 6 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, except that in the case of a person who completed the service requirements before 5 October 1994, the number of years of such qualifying service under this paragraph shall be 8 years. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served in an active component of the armed forces and completed 18 years and 10 months of active service between the date of his induction in 1971 to the date of discharge with entitlement to VSI in 1992.  

2.  He enlisted in the USAR on 28 July 1992 and he was transferred to the Retired Reserve on 24 June 2010.  However, with the exception of the 2008/2009 retirement year when he earned 60 points and the April 1992 to April 1993 retirement year, none of his RC years are qualifying or good years.  A qualifying year is defined as one wherein the RC Soldier has earned 50 retirement points.   

3.  The law requires completion of 20 qualifying years of service in order to be eligible for non-regular retirement at age 60.  He completed his 20th qualifying years in 1993.  At that time, the law required the last 8 years of qualifying service to have been completed in an RC status.  He did not complete his last 8 years of qualifying service in an RC status. 

4.  The applicant has the option of requesting Retiree Recall status, per the advisory opinion, to complete 20 years of active Federal service and an active duty retirement.

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)                                         AR20100014903



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ABCMR Record of Proceedings (cont)                                         AR20100014903



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