IN THE CASE OF:	  

		BOARD DATE:	  16 April 2013

		DOCKET NUMBER:  AR20120017853 


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 placement on the Retired List with entitlement to retired pay.

2.  The applicant states he was told by the 102nd U.S. Army Reserve (USAR) Command that he would be retired from the USAR due to unit inactivation with entitlement to pay and benefits at age 60. 

3.  The applicant provides Orders 117-018 transferring him to the Retired Reserve.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on XX April 1951. 

2.  Having had prior enlisted service in the Army National Guard (14 November 1970 to 13 November 1976) and the USAR, he enlisted in the USAR on 16 November 1986.

3.  He served through multiple extensions or reenlistments in a variety of troop program units (TPU) of the USAR, stateside and/or overseas, and he attained the rank/grade of staff sergeant (SSG)/E-6.

4.  On 18 November 1994, Headquarters, USAR Command, Atlanta, GA, published Permanent Orders F-23-25 inactivating the 102nd Army Reserve Command, effective 1 September 1995. 
5.  On 19 May 1995, he submitted a request for assignment to the Retired Reserve due to unit inactivation.

6.  On 8 July 1995, Headquarters, 102nd USAR Command, St. Louis, MO, published Orders 113-013 reassigning him from his TPU, the 7th Battalion, 78th Aviation, to the USAR Control Group (Reinforcement) effective 3 August 1995, due to individual request.

7.  On 10 July 1995, he submitted a DA Form 4187 (Personnel Action) that shows in the event an assignment to another unit was not available he requested early qualification for retired pay and transfer to the Retired Reserve.  He completed an addendum with this DA Form 4187.  He acknowledged that he had at least 15 but less than 20 years of qualifying service and that he had the following options:

* Transfer to a valid assignment in another USAR unit within a reasonable commuting distance
* If not offered a valid assignment, apply for early qualification for retired pay at age 60
* On a case by case basis, be reassigned to an overstrength status up to one year

8.  On 14 July 1995, Headquarters, 102nd USAR Command, St. Louis, MO, published Orders 117-017 revoking the above orders (Orders 113-013 reassigning him from his TPU to the USAR Control Group (Reinforcement) effective 3 August 1995.

9.  On 14 July 1995, Headquarters, 102nd USAR Command, St. Louis, MO, published Orders 117-018 reassigning him from his TPU, the 7th Battalion, 78th Aviation, to the USAR Control Group (Retired Reserve), effective 3 August 1995, due to individual request.

10.  On 10 February 2011, by letter, an official at the U.S. Army Human Resources Command (HRC) notified him that in order to qualify for retired pay, he would have had to have complete 20 qualifying years of service, the last 8 of which are in a Reserve Component.  A qualifying year is a year wherein a member has earned at least 50 retirement points.  A review of his records indicated he completed 17 years of qualifying service toward non-regular retirement. 

11.  On 8 March 2011, HRC again notified him by letter that the law requires completion of 20 qualifying years of service, the last 8 of which are in a Reserve Component.  A qualifying year is a year wherein a member has completed at least 50 retirement points.  A review of his records indicated he completed 17 years of qualifying service toward non-regular retirement. 

12.  He turned age 60 on XX April 2011.  His current Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points) shows he completed 17 qualifying years of service toward non-regular retirement. 

13.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.  

14.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service), implements statutory authorities governing the granting of “retired pay” to Soldiers and former Reserve component Soldiers.  Retired Pay is defined as pay granted Soldiers and former Reserve Components Soldiers under title 10, USC, section 1331, after completion of 20 or more years of qualifying service and upon attaining age 60.  It also states that 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 (1) attained age 60; (2) completed a minimum of 
20 years of qualifying service.  Each Reserve Component 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.

15.  Title 10, USC, sections 12731-12737 authorize retired pay for Reserve Component military service.  To be eligible for retired pay under this law, a reserve Soldier upon attaining age 60 must have completed a minimum of
20 qualifying years.  After 1 July 1949, a qualifying year is defined as the Reserve Soldier earning at least 50 retirement points.  

16.  Public Law 102-484 (Early Qualification for Retired Pay at Age 60) authorized an early retirement during the period 1 October 1994 through 30 September 1999 provided the Soldier was a member of the Selected Reserve during the 12 months prior to separation, lost a valid unit position due to unit inactivation/reorganization/relocation; completed 15 but less than 20 years of qualifying service; and the last 8 years of service were in a Reserve Component. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the ARNG and the USAR.  His records show he completed 17 years of qualifying service for non-regular retirement.  By law, in order to be eligible for retired pay, a Reserve Soldier upon attaining age 60 must have completed a minimum of 20 qualifying years of service.  A qualifying year is defined as a year in which the Reserve Soldier earned at least 50 retirement points.  

2.  However, when his unit was inactivated in September 1995, the applicant elected to transfer to the Retired Reserve.  He had then completed 17 qualifying years of service and had been a member of the Selected Reserve in the past 8 years prior to his transfer.  As such, he appears to have met the criteria for early retirement established in Public Law 102-484. 

3.  Therefore he should have been issued a 15-year letter and should be entitled to retired pay at age 60.

4.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant’s SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

BOARD VOTE:

___X____  ___X____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* Showing he was eligible for retired pay at age 60 
* Showing his application for retired pay at age 60 was processed in a timely manner and placing him on the retired list effective XX April 2011 with entitlement to retired back pay as of that date



      ____________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)                                         AR20120017853





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ABCMR Record of Proceedings (cont)                                         AR20120017853



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