BOARD DATE:	  4 June 2015

		DOCKET NUMBER:  AR20140017659 


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 on his 60th birthday with entitlement to retired pay.

2.  The applicant states he served for 19 years, 10 months, and 12 days in the U.S. military.  He was told that the medical disqualification that led to his discharge was Type I Diabetes.  He was also told that he would qualify for retired pay at age 60.  He served in the U.S. Army Reserve (USAR) for 14 years with the diabetes.  He was just 48 days short of completing 20 years of service for retirement and would have liked to serve out his commitment.  He would like the Army to complete its commitment to him as he completed his. 

3.  The applicant provides:

* DD Form 108 (Application for Retired Pay Benefits)
* APRC Form 249-E (Chronological Statement of Retirement Points)
* DD Form 2656 (Data for Payment of Retired Personnel)
* Retired Reserve orders 
* Congressional correspondence

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 7 November 1950. 

2.  He enlisted in the USAR under the Delayed Entry Program on 9 August 1972. He was discharged from the DEP on 5 April 1972 to enlist in the Regular Army. 
3.  He enlisted in the Regular Army for 3 years on 6 October 1972 and he extended his enlistment for a period of 2 months on 23 April 1975.  He was honorably released from active duty on 5 December 1975 and transferred to the USAR Control Group (Reinforcement). 

4.  His DD Form 214 (Report of Separation from Active Duty), as amended by  his DD Form 215 (Correction to DD Form 214) for this period of service shows he completed 3 years and 2 months of creditable active service and 1 month and 27 days of inactive service.  

5.  Between 6 December 1975 (the date after his release from active duty) and 8 August 1978 (the terminal date of his Reserve Military Service Obligation), he did not perform any drills and aside from membership points, he did not earn any other points.  

6.  He enlisted in the USAR on 6 April 1982, to begin USAR service on 20 April 1982.  He reenlisted in the USAR on 31 March 1983, 18 February 1986, 17 January 1989, and 3 January 1992.  He attained the rank/grade of sergeant first class (SFC)/E-7. 

7.  On 24 October 1996, he submitted a DA Form 4187 (Personnel Action).  He indicated that he had completed at least 15 but less than 20 qualifying years of service for non-regular retirement.  He acknowledged he understood he could be involuntarily separated from the USAR because he was found medically unfit.  He also acknowledged he had the opportunity to elect early qualification for retired pay at age 60 provided he elected to transfer to the Retired Reserve.

8.  On 3 March 1997, Headquarters, 96th Regional Support Command, Salt Lake City, UT, published Orders 062-4 transferring him to the Retired Reserve effective 1 March 1997.  His ARPC Form 249-E shows he completed 19 years, 10 months, and 12 days of qualifying service for non-regular retirement.  A breakdown of his retirement points is as follows:

FROM
TO
Component
Points
QUAL YEAR
19720809
19721005
USAR DEP
00
00/00/00
19721006
19730808
RA
307
00/10/03
19730809
19740808
RA
365
01/00/00
19740809
19750809
RA
365
01/00/00
19750809
19751205
RA
119
00/03/27
19751206
19760808
USAR
10
00/08/03
19760809
19770808
USAR
15
00/00/00
19770809
19780808
USAR
15
00/00/00
19780809
19810419
BREAK


19810420
19820419
USAR
65
01/00/00
19820420
19830419
USAR
84
01/00/00
19830420
19840419
USAR
60
01/00/00
19840420
19850419
USAR
89
01/00/00
19850420
19860419
USAR
92
01/00/00
19860420
19870419
USAR
92
01/00/00
19870420
19880419
USAR
91
01/00/00
19880420
19890419
USAR
96
01/00/00
19890420
19900419
USAR
80
01/00/00
19900420
19910419
USAR
91
01/00/00
19910420
19920419
USAR
98
01/00/00
19920420
19930419
USAR
71
01/00/00
19930420
19940419
USAR
81
01/00/00
19940420
19950419
USAR
93
01/00/00
19950420
19960419
USAR
74
01/00/00
19960420
19970301
USAR
83
00/10/12
19970301
19970302
USAR
00
00/00/00





TOTAL

2536

19/10/12
9.  On 20 December 2010, he submitted a DD Form 108 requesting to be placed on the retired list on his 60th birthday on 8 November 2010.  

10.  On 28 January 2011, HRC responded to his request informing him that in order to be eligible for retired pay at age 60, under Title 10, U.S. Code, sections 12731 through 12737, a Reserve Soldier must have completed a minimum of 20 qualifying years of service, the last 8 years of which must be in the Reserve Component.  A year is creditable for retirement when the Reserve Soldier completed at least 50 retirement points per year.   An audit of his records showed he completed 19 years, 10 months and 12 days of qualifying service for retirement.  Accordingly, he was ineligible for retired pay.   

11.  Title 10, U.S. Code, sections 12731 through 12740 authorize retired pay for Reserve component 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.  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 and has performed at least 20 years of service computed under section 12732 of this title. 

12.  Department of Defense Instruction 1215.7 (Service Credit for Reserve Retirement), paragraph 6.1.5.2. states that when, as a result of a break-in-service, a partial year occurs, the Service member must meet the minimum retirement point requirement set out in this Instruction for the member's service to be credited as a partial year towards a qualifying year.  A partial qualifying year is any period less than 12 full months in which the retirement points credited to a member, when computed proportionally, are equal to or greater than 50 points.  

13.  Army Regulation 135-180 (Qualifying Service for Retired Pay – Nonregular Service) states each Reserve Component Soldier who completes the service required to be eligible for retired pay at age 60 under this regulation will be notified in writing within 1 year after he or she has completed that service.  This notification will be issued by the appropriate authority at the time 20 satisfactory years of service are completed.

14.  Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60.  Three options are available:  (A)  elect to decline enrollment and choose at age 60 whether to start SBP participation; (B)  elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday; (C)  elect that a beneficiary receive an annuity immediately upon their death if before age 60.  If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity.  

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, Reserve component members are required to complete 20 years of qualifying service in order to be eligible for non-Regular retired pay.  A qualifying year of service for non-Regular retired pay is a full retirement year during which a Regular or Reserve member is credited with a minimum of 50 points.  The applicant completed 19 years, 10 months and 12 days of qualifying service for retirement.  Accordingly, he was ineligible for retired pay.   

2.  However, beginning on 20 April 1981 and all the way through 1 March 1997 when he was transferred to the Retired Reserve, the applicant consistently earned above 50 qualifying points toward non-regular retirement each year.  His original Retirement Year Ending (RYE) began on 9 August 1972 and ended on 8 August of the following year.  However, due to his break in service from 9 August 1978 to 19 April 1981 and subsequent enlistment on 20 April 1981, his RYE was recalculated to begin on 20 April 1981 and to end on 19 April the following year.  

3.  It appears in or around October 1996, his unit determined he was medically unfit for retention in the USAR.  He was counseled and indicted his desire to transfer to the Retired Reserve.  Despite knowing he had earned 83 points for his last RYE and despite knowing his RYE terminated on 19 April 1997, for unknown reasons, his higher headquarters transferred him to the Retired Reserve effective 1 March 1997, just 49 days before his RYE would have counted as a full rather than partial year.

4.  As a result of his transfer to the Retired Reserve effective 1 March 1997, the applicant's RYE from 20 April 1996 to 1 March 1997 did not count as a full year.  The end result is that the applicant was clearly deprived of the opportunity to receive a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) confirming his eligibility to receive his hard-earned retired pay at age 60.  

5.  Based on his service in the USAR as documented on his history statement, it is apparent that he would have successfully completed 20 qualifying years of service for a non-Regular retirement.  Unfortunately, he lacked 49 days he needed to reach the requirement due to his unexpected transfer to the Retired Reserve.  The statute requires a full 20 qualifying years be completed to be eligible for retired pay at age 60.  

6.  During RYE 19770809-19780808, the applicant received 15 retirement points which were insufficient for that year to count as a qualifying year.  The applicant also earned in excess of 50 retirement points during several other RYEs.  Therefore, by redistributing 35 of his excess points to RYE 19770809-19780808, it would credit him with 50 retirement points for RYE 19770809-19780808 and thus a qualifying year for retirement and subsequently entitle him to a 20 year non-Regular retirement and placement on the Retired List at age 60. 

7.  The above correction would entitle the applicant to receipt of his notification of eligibility to receive retired pay at age 60 (his 20-year letter), placement on the Retired List at age 60, and entitlement to back retired pay.  Additionally, the applicant should also be afforded the opportunity to enroll in or decline enrollment in the Survivor Benefit Plan (SBP).  

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:

* redistributing from any RYE where his points exceeded 50 points, 35 of his excess retirement points to RYE 19770809-19780808 to provide him with a full qualifying year of service for RYE 19770809-19780808
* issuing him a 20-year letter, if applicable, showing he is entitled to Reserve retired pay at age 60 as a result of the above correction
* placing him on the Retired List in his retired rank/grade of SFC/E-7 on his 60th birthday
* paying to the applicant back retired pay beginning the date he turned 60 and is placed on the Retired List  
* allowing him the opportunity to enroll or decline enrollment in SBP as a result of this correction 




      _______ _ 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)                                         AR20140017659



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ABCMR Record of Proceedings (cont)                                         AR20140017659



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