IN THE CASE OF:	  

		BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100015645 


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, through his Member of Congress, reconsideration of his earlier request for validation of his "good years" served in the U.S. Army Reserve (USAR) towards the issuance of a "20-Year Letter."

2.  The applicant states he was credited with 16 years, 5 months and 13 days of qualifying education and/or experience at the time of his appointment as a medical officer in the USAR.  The validation of this "constructive service credit" for retirement purposes would entitle him to a non-regular retirement at age 60.  He signed a contractual agreement on 16 November 1988 with an official of the USAR that indicated all of his service would be credited towards retirement.  He believes his contract was breached with the intent to defraud him of his constructive service credit and deny him retirement. 

3.  The applicant provides:

* Letter to his Member of Congress
* Letter from his civilian attorney
* DA Form 5074-R [Record of Entry Grade Credit (Medical and Dental Officers)]
* Appointment memorandum
* DA Form 3575 (Certificate of Acknowledgment and Understanding of Service Requirements)
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2001056056, on 30 August 2001.

2.  The applicant submitted a letter to his Member of Congress and a letter from his civilian attorney, which were not previously reviewed by the ABCMR.  Therefore, they are considered new evidence, and as an exception to policy, warrant consideration by the Board.

3.  The applicant's records show he was born on 1 July 1946.

4.  Having had prior enlisted service from 23 August 1968 through 14 July 1969, the applicant's records show he was appointed as a Signal Corps Reserve Component (RC) commissioned officer in the rank of second lieutenant on 15 July 1969.  

5.  On 10 July 1972, he entered active duty and he received a degree of Doctor of Osteopathy on 3 June 1973.  He completed an internship at Brooke Army Medical Center, San Antonio, TX, from July 1973 to July 1974 and he served as a flight surgeon at Fort Rucker, AL, from September 1974 to January 1976.  

6.  He was promoted to major (MAJ) on 3 June 1976 and completed residency training in internal medicine at Walter Reed Army Medical Center from July 1976 to June 1978.  He was voluntarily, honorably, released from active duty to pursue private practice on 1 July 1979.  His DD Form 214 shows the following entries:

* Item 18a (Net Active Service This Period), he completed 6 years, 11 months, and 22 days
* Item 18b (Prior Active Service), he completed 1 year, 4 months, and 26 days
* Item 18c (Total Active Service), he completed a total of 8 years, 
4 months, and 18 days
* Item 18d (Prior Inactive Service), that he served 2 years, 
11 months, and 25 days
* Item 12e (Total Service for Pay), he completed 11 years, 4 months, and 13 days



7.  It is unclear why, if he had been released from active duty and not discharged, he had to be reappointed, but on 20 April 1989 he was appointed as a Medical Corps commissioned officer in the USAR in the rank of MAJ and executed an oath of office on the same date. His appointment memorandum credited him with 16 years, 5 months, and 13 days of service.  It stated that this service is "not valid for pay entry basic date" and is "not the result of prior military service."

8.  His records contain a Retirement Waiver Statement, dated 24 April 1988, which states "I understand that it is unlikely that I will be able to complete 
20 years of qualifying service for retirement purposes under the provisions of 
Title 10 U.S.C. 1331 and 1332 prior to being removed from an active status under applicable laws and regulations." 

9.  In connection with this appointment, he received a DA Form 5074-R that awarded him constructive service credit as follows:

* 4 years for completion of a bachelor of chemistry degree in Philadelphia
* 1 year for an internship at Brooke Army Medical Center, San Antonio, TX
* 3 years for professional experience at Dunn, NC from 20 July 1979 to 19 July 1985
* 3 years, 4 months, and 25 days for a private practice from 20 July 1985 to 15 December 1988
* 5 years and 1 day for prior service from 3 June 1973 to 1 July 1979
* 27 days for Army Signal Corps service from 15 July 1969 to 2 June 1973

10.  His total entry grade credit was 16 years, 5 months, and 13 days which qualified him for entry at the rank of MAJ (14 years) and an adjusted date of rank based on excess constructive service credit in the amount of 2 years, 5 months, and 13 days.

11.  On 22 April 1996, he tendered his qualified resignation under the provisions of Army Regulation 135-175 (Separation of Officers), chapter 6 (Resignations) and on 9 July 1996, he was honorably discharged from the USAR in the rank of lieutenant colonel (LTC). 

12.  His current Army Reserve Personnel Center (ARPC) Form 249-E (Chronological Statement of Retirement Points) shows he completed 16 years and 1 day of qualifying service for non-regular retirement.

13.  He submitted:

	a.  A letter, dated 1 April 2009, to his Member of Congress, wherein he contend that at the time he signed his contract in 1988 he had no intention of going into an active Reserve status unless he had a chance to receive a Reserve retirement.  In order to fulfill his wishes, he was issued 6 years of prior service in the Ready Reserve after he left active duty in 1979.  He was later told that this credit was invalid.  However, when he signed his contract, he acted in good faith. Neither he nor the official who executed the contract knew at the time that the governing regulation had been changed 2 years prior.  As such, he was never issued a 20-year letter despite appealing to this Board.   

	b.  A letter, dated 13 January 2009, from his civilian attorney who advises him that Army Regulation 135-80 (Qualifying Service for Retired Pay, Non-Regular Retirement) contains in paragraph 2-9 a specific listing of service not creditable as qualifying service for retirement purposes.  This paragraph states that constructive service for medical and dental corps officers does not count as qualifying service for retirement purposes. 

14.  An advisory opinion was obtained on 20 January 2011 in the processing of this case.  An official at the Retired Pay Branch, U.S. Army Human Resources Command stated the applicant is not entitled to a 20-year letter because he did not complete 20 years of service for retirement.  He completed 16 years and 
1 day of qualified retirement years.  Additionally, retirement point credit listed on the DA Form 5074-R cannot be used as qualifying service for retirement.  

15.  The applicant submitted a rebuttal on 27 January 2011 wherein he stated that the advisory opinion does not address the breach of contract by the Army and the deliberate attempt by the Army to defraud him of retirement point credit he was awarded upon signing his contract in 1988.  He was unaware at the time that the years of service that he was credited for his appointment were worthless. 

16.  Title 10, U.S. Code, sections 1331 through 1337 (now section 12731 through 12733) authorize retired pay for RC 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.  

17.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former RC Soldiers:

	a.  Paragraph 2-1a states to be eligible for retired pay an individual does not need to have a military status at the time of application for retired pay, but must have attained age 60 and completed a minimum of 20 years of qualifying service. This regulation also specifies, in part, that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.

	b.  Paragraph 2-9 lists that various types of service which is not creditable as qualifying service.  Constructive service for medical and dental officers as defined in chapter1, part 1 of the DOD pay manual is not creditable as qualifying service.

18.  Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department (AMEDD) Branches) prescribes policy, procedures, and eligibility criteria for appointment in the RC of the Army, in the six branches of the AMEDD.  Paragraph 3-2 provides the policy for determination of entry grade for officers not ordered to active duty.  It states the grade of an individual appointed as a Reserve officer without concurrent call to active duty will be determined by comparing the entry grade credit awarded with the applicable phase point.  Authorized credit in excess of the minimum required for appointment to the appropriate grade will be used to adjust the date of rank within that grade.

19.  Title 10, U. S. Code, chapter 1205 (Appointment of Reserve Officers), section 12207(e), states constructive service credited an officer under subsection (b) (education) shall be used only for determining the officer's initial grade, rank in grade, and service in grade for promotion eligibility.

20.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers.  In pertinent part, it provides that an annual Statement of Retirement Points will be prepared for all Soldiers regardless of the number of points awarded.  The purpose of the statement is to give a permanent record of the total retirement points a Soldier earns during a retirement year; to tell the Soldier whether he/she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status; and to give the Soldier an opportunity to request correction of errors in the statement.

DISCUSSION AND CONCLUSIONS:

1.  The three issues involved in this case are:  the contract executed by the applicant in 1988, his constructive service credit, and whether he is eligible for retirement.


2.  With respect to the contract, the applicant's contentions are noted.  However, there is no evidence in the available records and he did not submit any substantiating evidence that shows he was promised the constructive service credit he received in connection with his appointment in 1989 would be credited as qualifying service for retirement purposes.  Additionally, he signed a Retirement Waiver Statement on 24 April 1988 which states "I understand that it is unlikely that I will be able to complete 20 years qualifying service for retirement purposes under the provisions of Title 10, U.S. Code, section 1331 and 1332 prior to being removed from an active status under applicable laws and regulations."  

3.  With respect to his constructive service credit, the available documentary evidence shows upon his appointment in 1989 he received the appropriate constructive credit for his basic qualifying degree, internship, experience, and training which equaled a total of 11 years, 4 months, and 25 days.  He also received credit for 5 years and 28 days of prior service.  His total credit equaled 16 years, 5 months, and 13 days, which entitled him to an entry grade of MAJ.

4.  The purpose of constructive service credit is to provide grade and date of rank comparability.  This is for a person who begins commissioned service after obtaining the additional education, training, or experience required for appointment or assignment as a commissioned officer in a professional field.  The law states this credit is used ONLY for a determination of the date of rank.

5.  With respect to non-regular retirement, the evidence of record shows he completed 16 years and 1 day of qualifying service towards non-regular retirement.  The law requires completion of 20 qualifying years of service in order to be eligible for non-regular retirement at age 60.  He should have been receiving his Statement of Retirement Points on an annual basis, and he should have known when he submitted a request for resignation in 1996 that he had only 16 years of qualifying service for retirement at that time.

6.  The applicant provides insufficient evidence to show he was improperly counseled at any time or that he did not know how many qualifying years of service for a Reserve retirement he had at the time he requested resignation.  He does not qualify for the issuance of a Notification of Eligibility for Nonregular Retirement (20-year letter) and/or transfer to the Retired Reserve and/or entitlement to retired pay at age 60.  


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 to amend the decision of the ABCMR set forth in Docket Number AR2001056056, dated 30 August 2001.



      _______ _ 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)                                         AR20100015645



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ABCMR Record of Proceedings (cont)                                         AR20100015645



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