IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110004567 


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 correction of his military records to show he met the requirements for a non-regular retirement.

2.  The applicant states, in effect, that he has served in the U.S. Army for more than 34 years, of which 21 years, 10 months, and 29 days is qualifying service for a non-regular retirement.  In 1992, he accepted the Voluntary Separation Incentive (VSI) offer.  He remained active in the U. S. Army Reserve (USAR) until 2000, when he was placed in the Retired Reserve.  In 2006, he turned 60 years of age and was told that he did not qualify for a non-regular retirement because he did not earn 50 points in each of his last 8 years in the USAR.  In 2010, he was told by the retirement branch that the law had changed and he would now be eligible for a full retirement.

3.  The applicant provides:

* his DD Form 214 (Report of Separation from Active Duty) for the period
3 February 1972 through 3 October 1974
* his DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the period 13 July 1980 through 29 September 1992 and 14 August 2005 through 10 July 2006
* his AHRC Form 249-2-E (Chronological Statement of Retirement Points), dated 14 December 2006
* a letter to him from the Defense Finance and Accounting Service (DFAS), dated 15 March 1995


* Orders C-10-029357, issued by the U.S. Army Reserve Personnel Command, St. Louis, MO, dated 16 October 2000, reassigning him to the Retired Reserve, effective 10 October 2000
* Orders M-08-502795, issued by the U.S. Army Human Resources Command, St. Louis (HRC-STL), dated 5 August 2005, ordering him to active duty in support of Operation Enduring Freedom (OEF)
* Orders 179-2204, issued by Headquarters, U.S. Infantry Center, Fort Benning, GA, dated 28 June 2006, releasing him from active duty effective 10 July 2006
* a letter to him from HRC-STL, dated 26 September 2006
* a letter to his Member of Congress from HRC-STL, dated 21 December 2006
* an undated memorandum from the applicant to the U.S. Army Reserve Command, St. Louis
* a self-prepared DA Form 4037 (Officer Record Brief), dated 25 May 1997

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was a lieutenant colonel in the Retired Reserve.

2.  The applicant has been affiliated with the U.S. Army since 1972.  His service includes the following:

* January to October 1972:  enlisted delayed entry and Regular Army (RA)
* October 1972 to September 1986:  commissioned, USAR
* October 1986 to 29 September 1992:  commissioned, RA
* 30 September 1992 to 10 October 2000:  commissioned, USAR
* 11 October 2000 to 13 August 2005:  Retired Reserve
* 14 August 2005 to 10 July 2006: commissioned USAR (Recalled to active duty as a Retired Reservist)
* 11 July 2006 to present:  Retired Reserve

3.  Total Army Personnel Command (TAPC) message, date time group 171247Z, March 1992, notified the applicant that his voluntary request for an unqualified resignation was approved and that he would be separated under the provisions of the VSI.

4.  On 29 September 1992, the applicant was discharged in the rank/grade of major (MAJ)/O-4.  He was appointed in the USAR and was transferred to the Individual Ready Reserve (IRR) in accordance with his VSI.  His DD Form 214 he was issued at the time indicates he was authorized annual VSI payments for a period of 28 years.
5.  On 30 September 1993, the applicant was promoted in the USAR to lieutenant colonel (LTC)/O-5.

6.  On 11 October 2000, the applicant was transferred to the Retired Reserve.

7.  On 14 August 2005, the applicant was called to active duty in support of OEF. He served in the Federal Republic of Germany until 24 June 2006.  He was released from active duty on 10 July 2006 and transferred back to the Retired Reserve.

8.  The applicant's AHRC Form 249-2-E indicates he did not have any qualifying years for retirement from the time he left the RA in 1992 to October 2000, when he was transferred to the Retired Reserve.

9.  In a letter from the Chief, Transition and Separations Branch, HRC-STL, dated 26 September 2006, the applicant was informed that he did not qualify for retirement as a member of the Reserve because his last 8 years in the USAR were not qualifying years for retirement.

10.  Title 10, U.S. Code, section 12731, provides for non-regular retired pay to persons who had attained 60 years of age; had completed 20 or more years of qualifying service; and:

	a.  prior to 5 October 1994 had performed the last 8 qualifying years as a Reserve;

	b.  from 5 October 1994 through 24 April 2005 had performed the last 
6 qualifying years as a Reserve; and

	c.  on and after 25 April 2005 qualifying years no longer had to be completed within any set number of last years as a Reserve member.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he met the requirements for a non-regular retirement.

2.  The evidence clearly shows that on 29 September 1992, the applicant was voluntarily discharged, accepted appointment in the USAR, and was transferred to the IRR with annual VSI payments to be paid through the year 2020.  

3.  During the period from 1993 through 2000 the applicant did not have any qualifying year as a member of the IRR.  He was transferred to the Retired Reserve on 11 October 2000.  After a 10-month call to active duty as a Retired Reserve in 2005-2006, he was placed back into the Retired Reserve.  There are no further indications that he has completed any subsequent qualifying service as a Reservist.

4.  In 1992, when the applicant left the Regular Army, the law required the last 
8 years of qualifying service to have been in the Reserve.  This requirement did not change to zero years until 5 years after his transfer to the Retired Reserve in 2000.  Furthermore, the law is not retroactive.  Accordingly, he does not meet the requirements for a non-regular retirement.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110004567



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ABCMR Record of Proceedings (cont)                                         AR20110004567



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