PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  14 March 2002
	DOCKET NUMBER:  AR2001058405

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Roger W. Able		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, correction of his basic active service date (BASD), that he be restored to active duty with a retention control point (RCP) 
of 22 years, and that he be considered for selection to master sergeant (MSG/E8).
 
3.  The applicant states, in effect, that his BASD was incorrect, that his RCP 
for sergeant first class (SFC/E-7) was 22 years, and that he should be considered for promotion to MSG/E8.  He also states that due to his incorrect BASD, he was denied one full year of retirement pay, and at 22 months prior
to his retirement, he was removed from consideration of a career enhancing permanent change of station (PCS) to the United States Army Special Operations Command (USASOC) Headquarters.  This removal prevented him from deploying with his unit to Bosnia and his records were withheld from the 
US Army Reserve (USAR) Army Guard/Reserve (AGR) MSG Promotion Selection Board.  In support of his application he submits four DA Forms 
2A (Personnel Qualification Record – Part I), a copy of his DA Form 4187 (Personnel Action - Request for Retirement), two DA Forms 2339 (Application 
for Voluntary Retirement), a copy of his 2-1 (Personnel Qualification Record –
Part II), two copies of retirement orders, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
 
4.  In support of his application he submits an addendum to his application.  
In this addendum, he contends that he returned to active duty in the AGR in
April 1981. After several breaks in service, his BASD had to be recomputed.
His BASD was incorrectly entered as 20 April 1981, which was actually the 
date that he reentered the service.  He was forwarded a copy of his DA Form
2A on a yearly basis and was informed to make corrections and return the form to the Army Reserve Personnel Center (ARPERCEN).  His career manager at
ARPERCEN recomputed his BASD in 1992 to reflect a BASD of 19 August 1978. This adjusted BASD entitled him to an RCP of 22 years effective 19 August 2000.  His BASD was again adjusted in 1996 to reflect a BASD of 19 August 1977, and entitled him to an RCP of 22 years effective 19 August 1999.  He questioned his BASD on several occasions and was assured by his career manager that it was correct.  He did not question his BASD until he was within
24 months of his RCP.  During the fall of 1997, the AGR manager called to 
ask if he would like to be considered for reassignment to the US Army Special Operations Command (USASOC) as the Operations Sergeant.  He later called his career manager at ARPERCEN and notified him about the possible reassignment; however, his career manager informed him that he was 
ineligible for reassignment due to his RCP of 19 August 1999, which was 
within 24 months.  His name was withdrawn from consideration for this assignment due to insufficient time remaining in service.  

5.  During 1998 his unit was notified that personnel would be activated for Operation Joint Guard in Bosnia-Herzegovina, with the first rotation to depart in January 1999.  As the Operations Sergeant, he would normally depart on the first rotation to prepare for the follow-up rotations.  ARPERCEN, now called Army Reserve Personnel Command (AR-PERSCOM), was notified of this deployment. He was denied permission to deploy because he would not return until just prior to his RCP, which would not leave enough time for transition. This was another career-enhancing assignment that was denied by AR-PERSCOM.

6.  His position was later upgraded in 1998 from E-7 to E-8 which provided him the best opportunity for promotion.  Prior to his upgrade, there had been very few positions and only one or two individuals per year within his Military Occupational Specialty (MOS) were promoted.  He forwarded his promotion packet by the required suspense date.  The MSG Selection Board was scheduled for October 1998 with results to be released in January or February of 1999.  He waited for the board results to determine whether or not he would have to submit his retirement packet.  He called his career manager in December 1998 to discuss his options and determine when he would have to submit his retirement package if he did not get promoted.  His career manager informed him that due to his RCP of August 1999, his promotion packet was withheld from the board and he was not considered.  He was also informed that he was to submit his retirement package as soon as possible to ensure that orders were received prior to his separation.  He was not given a choice about when to submit for his retirement.  His career manager at AR-PERSCOM insisted that his RCP for 22 years of active service was in August 1999.

7.  He computed his leave, as well as other allowable time, and determined that his separation date would be 18 May 1999, with an effective retirement date of
31 August 1999.  He submitted his retirement on 3 December 1998, as instructed by his career manager at AR-PERSCOM.  He indicated on his application that
he was requesting retirement after 22 years of Active Federal Service (AFS) as computed by AR-PERSCOM.  Within 45 days from his separation date, he was informed that separation orders would be published; however, there was a backlog.  He received orders dated 6 April 1999, on 16 April 1999, just 33 days prior to his separation.  He was mortified to see that AR-PERSCOM recomputed his time on his DA Form 2339, also dated 6 April 1999, reflecting only 21 years of AFS.  This prevented him from receiving a 2.5 percent increase in retirement pay for the rest of his life.  This also meant that if the DA Form 2339 was correct, he was unfairly denied the opportunities previously discussed.  He made several telephone calls to AR-PERSCOM; spoke to various personnel from his career manager to the retirement section, to administration, and the AR-PERSCOM 

 
 
Sergeant Major, and it was determined that 21 years was the correct amount of 
time and that his BASD should have been 19 August 1978, instead of 19 August 1977.  He inquired about revoking his retirement orders and was informed that an appeal had to be submitted, through the chain of command, to the Secretary of Defense (SecDef), 30 days prior to separation.  He stated that, in accordance with regulation, that the SecDef was the only approving authority to revoke his retirement orders.  His research of the regulation determined that the only reason for revocation was if the retirement would create a severe hardship.  However, since he received his orders only 33 days prior to separation, submitting a request for revocation to the SecDef in just 3 days was impossible.  His situation did not meet the criteria of a severe hardship.  He consulted with his local Staff Judge Advocate office at Fort Meade, Maryland, inquiring about legal options.  The Judge Advocate Officer opined that his only redress was through this Board, after he retired.  He also telephoned the Inspector General (IG) at AR-PERSCOM to discover what happened and why he wasn’t notified of the error prior to orders being published.  According to the IG spokesperson, he should have received a completed DA Form 2339, with final computations of his total service for retirement.  This form was to be returned with any corrections and evidence to substantiate the corrections.  This form was later forwarded to him with orders in the same envelope and was dated 6 April 1999.

8.  In accordance with Army Regulation 635-200, chapter 12, paragraph 12-27, after 18 years of AFS each individual will be interviewed by an officer having custody of the individual’s personnel records to verify all AFS.  The incorrect computations would have been caught at the time of the interview, if this regulation had been followed.  This interview never took place.  He submitted his
DA Form 2339 with his retirement packet, signed in two places, and submitted the form per instructions from AR-PERSCOM Retirement Section.  The service date was to be corrected and returned for him to make any additional corrections.
AR-PERSCOM did not notify him of the correction from 22 years to 21 years of AFS prior to publishing orders.  He questioned AR-PERSCOM’s Retirement Section and was informed that nothing could be done at this late date because orders were already published.  He was unable to obtain the names of the individuals that he spoke with during that time which prevents him from obtaining statements.  

9.  American Legion, as counsel for the applicant, contends that the applicant was unjustly denied completion of his authorized term of service due to an error created by AR-PERSCOM and reinforced by his enlisted career manager.  The applicant’s RCP was changed in 1996 to reflect a BASD from August 1978 to August 1977.  The applicant’s DA Form 2A generated on 27 August 1998, just prior to the MSG Selection Board still reflected a date of 1977.  Upon review by the retirement branch it was determined that the correct date was August 1978.  

Due to this error the applicant was forced to retire earlier than the required 
22 years for a SFC and was denied the opportunity to have his records presented to the MSG Selection Board in October 1998.  He was further denied the opportunity for deployments and reassignments.  Counsel also states that 
the applicant did not have a background in the area; however, he did request review of the BASD and was denied.  The applicant also attempted to correct 
his DA Form 2A when he submitted a corrected copy to the MSG Selection Board in August 1998.  Counsel further states that if corrective action had been taken at that time, he would not have been required to submit his retirement package to AR-PERSCOM in December 1998.  Counsel concludes that his records would have been submitted to the MSG Selection Board and would
most likely have been granted a promotion.  Counsel requests that the Board’s final decision reflect sound equitable principles consistent in law, regulation, policy, and discretion.

10.  The applicant’s military records show he enlisted in the Regular Army on 17 March 1969, as an armor crewman.  He continued to serve until he was honorably discharged on 17 November 1971.

11.  He enlisted in the California Army National Guard  (CAARNG) on 14 May 1975, and continued to serve until he was honorably discharged from the CAARNG on 12 May 1976.

12.  He enlisted in the US Army Reserve (USAR) on 16 May 1978, was promoted to the pay grade of SFC/E7 on 5 April 1981, and was released from the USAR 
on 19 April 1981.

13.  He was ordered to active duty (AD) in the AGR on 20 April 1981. 

14.  A review of his DA Forms 2A, dated 12 March 1992 and 4 August 1994, show his BASD as 19 August 1978.  However, his DA Forms 2A, dated 3 April 1996, and 27 August 1998, show his BASD as 19 August 1977.

15.  On 3 December 1998, the applicant submitted his requested for retirement.

16.  The applicant was placed on the Army of the United States Retired List on 31 August 1999, in the pay grade of SFC/E7.  He had completed 21 years and 
19 days of creditable service.

17.  The applicant’s DA Form 7301 (Service Computation for Retirement)
shows his total 1405 Service (Total Service for Percentage Purposes) as
“21 06 24 “ (21 years, 6 months, and 24 days).

 
18.  A copy of the applicant’s DA Form 1503 (Statement of Service – For Computation of Length of Service For Pay Purposes), dated 3 October 1994,
was provided by AR-PERSCOM to a staff member of the Board on 15 October 2001.  The document indicates that the applicant had a BASD of 19 August 1977, which was verified by the applicant’s signature on 27 October 1994.
An additional copy of a DA Form 1503 was also provided, which was dated 2 February 1999, with an adjusted BASD of 12 August 1978, which was not signed by the applicant.

19.  A copy of the applicant’s Chronological Statement of Retirement Points (Summary Points Inquiry/Update) was provided by AR-PERSCOM to a staff member of the Board.  The document indicates that the applicant had completed 21 years of qualifying service for retirement purposes.

20.  In the processing of this case an advisory opinion was provided by the 
Office of the Chief, Army Reserve (OCAR).  OCAR stated that the applicant 
signed his DA Form 2A on 4 August 1994, in which he concurred that his BASD 
of 19 August 1978, was correct, and on 3 October 1994, concurred that his BASD of 19 August 1977, was correct.  He was not eligible for consideration 
for promotion to MSG in October 1998 because he was within 12 months of his RCP based on his BASD of 19 August 1977.  The RCP for his current rank of SFC is 22 years of AFS.  On 3 December 1998, the soldier submitted a DA Form 4187 requesting retirement on 1 September 1999, which reflects that he intended to retire with 22 years of AFS.  A DA Form 1506 was generated as a result of processing his retirement application which reflected a BASD of 12 August 1978. The soldier received retirement orders reflecting over 21 years of service, which the soldier verified from his personnel files, and retired on 1 September 1999. 
The opinion concluded that, while the applicant could potentially have been allowed to serve until his RCP of 22 years, there was no entitlement in statute or policy to do so.

21.  The opinion further states that the applicant was aware for over 4 months before retirement that he would not have 22 years of AFS at his requested retirement date, and while soldiers are authorized to request change or withdrawal of an approved retirement, there is no evidence that the applicant requested to change or withdraw his retirement as authorized by paragraph 12-15, Army Regulation 635-200.  Had the applicant’s BASD been calculated correctly at that time, he would have been eligible for consideration by the Calendar Year (CY) 98 USAR AGR MSG/SGM Promotion Selection Board.

22.  The applicant was provided a copy of this opinion for possible comment.
In his rebuttal the applicant stated that the conclusions reached by the OCAR were flawed in light of the facts presented in his original request for corrections of records.  There was no statute, requirement, or policy to allow a soldier to serve until RCP and a soldier is normally allowed to serve until their RCP unless there was a compelling reason for the military to ask the soldier to depart earlier.  He was aware that, after receiving his retirement orders, that he was 1 year short of his RCP.  He obtained a copy of a regulation, which he does not recall if it was Army Regulation 635-200, after receipt of orders.  He understood the regulation to direct a request for withdrawal of his retirement orders be submitted through the chain of command to the SecDef.  The regulation also directed that action be taken 30 days prior to separation, not retirement.  He consulted with the Staff Judge Advocate Office and was advised that his only option was to pursue action through this Board, after retirement.  The Judge advocate Officer determined that the time frame was too short and that he did not meet the criteria for withdrawal of his retirement orders.

23.  He goes on to state that there was no justifiable extreme hardship that he could have presented to have his retirement orders withdrawn.  He followed the 
advice of counsel and presented his request to this Board, after retirement. 
He also states that had his BASD been properly calculated, he would have remained in the Army until 1 August 2000.  He questioned AR-PERSCOM 
about the change in his RCP when it initially occurred, and was informed in a logical manner, that the new RCP was correct.  He requested correction of his RCP during the yearly update of his DA Form 2A in 1998, prior to submission 
of his mandatory retirement.  He was again informed that his BASD of 19 August 1977, was correct.  However, he does not know why it was changed to 1977, at AR-PERSCOM 3 years prior to his mandatory retirement.  In conclusion, the applicant states that 3 days was insufficient time to submit a request, through the chain of command, for withdrawal of retirement orders in order that the request be received 30 days prior to separation.  He respectfully requests that the Board relook his original request with a fresh perspective and decide his case with fairness and justice.

24.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 of that regulation sets policies and procedures for voluntary retirement of soldiers because of length of service.  Paragraph 
12-15 states, in pertinent part, that an eligible soldier’s application for retirement will not be withdrawn unless it is established that retaining the soldier on active duty will be for the convenience and best interest of the Government or will prevent an extreme hardship to the soldier or immediate family.  The hardship must have been unforeseen at the time of application.  An application may not 
be withdrawn after travel has been performed.  The retirement date will not be changed unless, after the application is submitted, events that justify a change 

in the retirement occur that would cause an extreme hardship to the soldier or immediate family.  Requests for withdrawal of applications or change in retirement date must be fully documented.  Requests will be forwarded to reach the retirement approval authority at least 30 days before the previously requested retirement date.  The retirement approval authority will disapprove those requests which clearly do not meet established criteria or which are not fully documented.

25.  Paragraph 12-28, of the same regulation, states that each soldier will be interviewed by the officer having custody of the soldier’s records when he/she completes 18 years’ service for basic pay.  The interview will determine if the soldier has had service (active Federal service or inactive service in any branch of the Armed Forces) in addition to that shown in the Military Personnel Records Jacket (MPRJ) or personal financial records (PFR).  Further verification is not required for soldiers whose only claimed service is Army service that is clearly substantiated in their MPRJ or PFR.  Army service claimed by the soldier that is not clearly substantiated in his/her MPRJ or PFR will be verified as follows:  National Guard service will be verified by the Adjutant General of the State or Territory and if breaks in the applicant’s Army service or periods of prior Army service have been previously verified.  It is important that inclusive dates for all service claimed, both active Federal service and inactive service, be furnished.  Other service claimed by the applicant will be verified by certified statements of service and other official statements.

26.  Army Regulation 635-200, paragraph 12-4, implements Title 10, United States Code, section 3914 which governs 20-year retirement by a soldier of the Regular Army, the Army National Guard of the United States and the U.S. Army Reserve. In pertinent part, the regulation provides that a request for retirement may be submitted by a soldier who has completed 20 years, but less than 30 years, of active Federal service in the U.S. Armed Forces.  Approval of the request for retirement will be at the discretion of the Secretary of the Army.

27.  Army Regulation 140-111 governs the immediate reenlistment or extension of current members of the USAR assigned to the Selected Reserve, the Individual Ready Reserve (IRR), and the Standby, and personnel serving on active duty in the AGR program.  Paragraph 8-7.1 pertains to RCP.  It states that a soldier in an AGR status cannot reenlist or extend for continued service on AGR status with a term of service (ETS) that would exceed the RCP for his or her grade by more than 29 days.  Waivers or exceptions to provide for a reenlistment or extension to permit a soldier to remain on active duty in an AGR status for more than 29 days beyond the soldier’s RCP are not authorized and will not be considered.  It states that the RCP or maximum service allowed for personnel serving in the pay grade of E-7 could not exceed 22 years.

28.  Army Regulation 140-158 prescribes policy and procedures pertaining to the classification, promotion, reduction, and grade restoration of enlisted soldiers 
of the US Army Reserve (USAR).  Chapter 7 governs promotion of soldiers serving on AGR status.  Paragraph 4-18 pertains to Enlisted Standby Advisory Boards (STAB).  It states that the Enlisted STAB will consider records from the primary zone (PZ) and the secondary zone (SZ) not reviewed by a regular board.
It also states that the names of soldiers selected by the Enlisted STAB will be integrated on the recommended list, promoted along with their peers when their sequence number is reached and a vacancy or projected vacancy occurs.

CONCLUSIONS:

1.  The evidence of record shows that the applicant’s DA Form 2A initially reflected a BASD of 19 August 1978, which entitled him to an RCP of 
22 years effective 19 August 2000.  Evidence also shows that his DA Form 2A was later adjusted to show a BASD of 19 August 1977, which entitled him to a new RCP of 22 years effective 19 August 1999.  The BASD was questioned on several occasions and his career manager assured the applicant that 19 August 1977 was correct.

2.  The BASD was not questioned again until the applicant was within 24 months of his RCP.  The applicant was called and asked if he would like to be considered for reassignment; however, he was later informed that he was ineligible due to his RCP of 19 August 1999.  The applicant’s unit was notified in 1998 that personnel would be deployed to Bosnia, with the first rotation in January 1999.  The applicant was denied permission to deploy because he would not return until just prior to his RCP of 19 August 1999, which would not leave enough time for transition.  

3.  The applicant’s position was later upgraded in 1998 from E-7 to E-8 which provided him an opportunity for promotion.  The applicant forwarded his packet to the MSG Selection Board by the required suspense date.  The applicant called his career manager in December 1998 to discuss his options and to determine if he would have to submit his retirement packet if he did not get promoted.  He was informed to submit his retirement packet as soon as possible to ensure that orders were received prior to his separation.  He was assured that his RCP for
22 years of service was in August 1999.

4.  The applicant computed his leave, as well as other allowable time, and determined that his separation date would be 18 May 1999, with an effective retirement date of 31 August 1999.  He submitted his application as instructed by his career manager on 3 December 1998.  The applicant indicated that he was requesting retirement after 22 years of AFS as computed by AR-PERSCOM and orders were published with 45 days.  Orders were received on 16 April 1999, dated 6 April 1999, just 33 days prior to his separation date of 18 May 1999.  
5.  The applicant noticed that AR-PERSCOM recomputed his time on his DA Form 2339 to reflect only 21 years of AFS which prevented him from receiving a 2.5 percent increase in retired pay.  This also meant that if the DA Form 2339 was correct, then he was unfairly denied the career and promotion opportunities available to him.  The applicant stated that he made several telephone calls to AR-PERSCOM and spoke with various personnel pertaining to his case and it was determined that 21 years of AFS was the correct amount of time and that 19 August 1978, was now his correct BASD.
 
6.  The Board notes the applicant’s contention that he inquired about revoking his retirement orders and was informed that an appeal had to be submitted, through the chain of command, to the SecDef, 30 days prior to separation.  He researched the regulation and understood that the SecDef was the only approving authority to revoke his retirement orders and discovered that the only reason for revocation was if the retirement would create a severe hardship.  However, his situation did not meet the criteria. 

7.  The Board notes his contention that he consulted with the Staff Judge Advocate Office and inquired about legal options.  The Judge Advocate Officer opined that his only redress was through this Board, after he retired.  He also consulted with the IG, who informed him that he should have received a completed DA Form 2339, with final computations of his total service for retirement, and with any corrections and evidence to substantiate the corrections. 

8.  The Board further notes the applicant’s contention, that if regulations had been followed in accordance with Army Regulation 635-200, paragraph 12-27, that the incorrect computations would have been caught at the time of the interview.  However, this interview never took place, and he submitted his retirement packet per instructions from AR-PERSCOM.  He was never notified 
of the corrections from 22 years to 21 years of AFS prior to publishing orders.  He questioned AR-PERSCOM and was informed that nothing could be done at 
that late date because orders were already published.

9.  Had the applicant’s BASD been calculated to show a BASD of 19 August 1978, he would have been entitled to an RCP of 22 years effective 31 August 2000.  The Board further notes that the applicant could have potentially been allowed to serve until his RCP of 22 years; however, there is no entitlement in statute or policy to do so.

10.  Notwithstanding the OCAR advisory opinion, it would be appropriate, in the interest of justice, to award the applicant an additional year of AFS to show that he completed 22 years of AFS effective 31 August 2000, with entitlement to all back pay and allowances from 1 September 1999 to 31 August 2000.  

11.  Based on the preponderance of evidence, the Board recommends that the applicant be considered by a HQDA AGR Enlisted STAB for promotion to MSG under the CY98 promotion selection criteria.  If selected for promotion under the CY98, he should be promoted effective on the original adjournment date of that board and should be provided commensurate back pay and allowances.

12.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected:
 
a.  by voiding the applicant’s 31 August 1999 retirement;
 
b.  by showing that the applicant was retired with an effective date of 31 August 2000;
 
c.  by issuing the applicant a Certificate of Retirement with an effective date of 31 August 2000;
 
d.  by amending AR-PERSCOM orders C-04-700400, dated 6 April 1999 to show:
 
(1).  an effective date of “31 August 2000”;
 
(2).  Date Placed on Retired List:  1 September 2000;
 
(3).  Vol (voluntary) Retirement:  “22 years, 00 months, and 19 days”;
 
(4).  1405 Service:  “22 years, 6 months, and 24 days”;
 
(5).  Basic Pay:  25 years, 10 months, and 17 days”;
 
e.  by showing that he was entitled to and paying him all back pay and allowances from 1 September 1999 to 31 August 2000, with appropriate off set from retired pay already received; 
 
f.  by showing in item 12b (Separation Date This Period) of his DD Form 214 the entry “2000 08 31”;

g.  by showing in item 12c (Net Active Service This Period) of his DD Form 214 the entry “19 04 11”;

h.  by correcting his retirement points statement to show that he was credited with 365 active duty points and 365 total retirement points for the year 1 September 1999 to 31 August 2000 and to show his retirement end date as 31 August 2000; 

	i.  upon completion of the administrative corrections to the individual’s records and issuance of a new Chronological Statement of Retirement Points
(Summary Points Inquiry/Update) showing that the period of service from 1 September 1999 to 31 August 2000 was one year;

	j.  by sending his files to a HQDA AGR Enlisted STAB for promotion to MSG under the CY98 promotion selection criteria; and 

k.  if selected for promotion under the CY98, promote on the original adjournment of that board, and provide the applicant all back pay and allowances from the effective date of promotion.

BOARD VOTE:  
 
__jl___  ___wm___  __ra____  GRANT AS STATED IN RECOMMENDATION
 
________  ________  ________  GRANT FORMAL HEARING
 
________  ________  ________  DENY APPLICATION

 
 
		____Joann Langston___
		        CHAIRPERSON

 
INDEX
 
CASE ID	AR2001058405	
SUFFIX	 	
RECON		
DATE BOARDED	20020314	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19990901	
DISCHARGE AUTHORITY	AR .140-111	
DISCHARGE REASON	 	
BOARD DECISION	GRANT	
REVIEW AUTHORITY	 	
ISSUES         1.  338	 	
2.	 	
3.	 	
4.	 	
5.	 	
6.