BOARD DATE: 10 November 2010 DOCKET NUMBER: AR20100009640 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, in effect, sufficient retirement points be awarded from 25 January 2007 to present to show qualifying years of service for nonregular service retirement pay. 2. The applicant defers his statement to counsel. 3. The applicant provides a statement from his counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests the applicant be granted constructive service from 25 January 2007 until present for purposes of time in service and time in grade towards retirement. 2. Counsel states the applicant's aviation service orders and his entitlement to aviation career incentive pay were erroneously terminated on 23 August 2006. As a result he lost his military occupational specialty (MOS) and was transferred to the Individual Ready Reserve (IRR) on 25 January 2007. On 8 March 2008, while he was seeking to join another unit, the U.S. Army Human Resources Command (HRC) informed the applicant that he had lost his MOS. On 16 July 2009, the Army Board for Correction of Military Records (ABCMR) determined the orders revoking his MOS were to be revoked and his records corrected to show he never lost his aviation MOS and that he had continued to serve in that MOS as an aviator in the IRR. Counsel states that if it had not been for the administrative error by HRC concerning his MOS, the applicant would have found a unit assignment in 2007. 3. Counsel provides copies of: * ABCMR Docket Number AR20090002751, dated 16 July 2009 * the applicant's National Guard Bureau Form 22E (Report of Separation and Record of Service) with an effective date of 31 October 2001 CONSIDERATION OF EVIDENCE: 1. On 31 October 1991, the applicant was appointed as a warrant officer one in the U.S. Army Reserve (USAR). He had 6 years, 3 months, and 1 day of previous enlisted service in the Regular Army and the USAR. On 30 December 1991, the applicant was commissioned as a warrant officer two in the California Army National Guard (CAARNG). 2. On 31 October 2001, the applicant was discharged from the CAARNG and assigned to the USAR Control Group (Annual Training). 3. On 21 December 2001, the applicant was transferred to the USAR Control Group (Reinforcement). 4. On 25 April 2005, the applicant was transferred to the 158th Aviation Battalion, USAR, at Fort Carson, CO. 5. On 23 August 2006, HRC terminated the applicant's aviation service orders and entitlement to aviation career incentive pay. 6. On 25 January 2007, the applicant was transferred to the USAR Control Group (Reinforcement). The reason stated on the orders was "cogent personal reasons." 7. On 10 April 2009, the applicant submitted an application to the ABCMR requesting removal of all documents related to a Flight Evaluation Board from his official military personnel file, revocation of aviation service termination orders, restoration of aviation MOS, and reinstatement in the IRR. On 16 July 2009, the ABCMR determined the orders terminating the applicant's aviation service orders and entitlement to aviation career incentive pay were to be revoked and his records corrected to show he never lost his MOS and that he continued to serve in that MOS as an aviator in the IRR through the present. 8. On 30 October 2009, HRC reinstated the applicant's MOS 153BG (Aviation Maintenance Officer) effective 26 November 1993. 9. On 23 December 2009, HRC reinstated the applicant's entitlement to aviation career incentive pay with an effective date of 8 December 2005. 10. On 12 October 2010, the applicant was transferred to the 158th Aviation Regiment in New Century, KS. 11. The applicant's U.S. Army Reserve Personnel Command Form 249 (Chronological Statement of Retirement Points) shows his service and retirement points as: * retirement years ending (RYE) 26 March 1987, 7 December 1987, and 26 March 1988 through 26 March 2005 - received 50 retirement points or more * RYE 26 March 2006 - received 20 retirement points (5 inactive duty and 15 membership) * RYE 26 March 2007 - received 19 retirement points (4 inactive duty and 15 membership) * RYE 26 March 2008 - received 15 retirement points (15 membership only) * RYE 26 March 2009 - received 15 retirement points (15 membership only) * RYE 26 March 2010 - received 15 retirement points (15 membership only) 12. Title 10, U.S. Code, chapter 1223 (Retired Pay for Nonregular Service), section 12731 (Age and Service Requirements), provides that a person is entitled upon application to retired pay if the person is age 60 and has performed at least 20 years of qualifying service. A qualifying year is determined to be a year in which a minimum of 50 retirement points have been credited for a Reserve member. DISCUSSION AND CONCLUSIONS: 1. Counsel contends sufficient retirement points should be awarded to the applicant for the period 25 January 2007 to present to show qualifying years for nonregular service retirement pay. Counsel states that if it had not been for the administrative error by HRC concerning the applicant's MOS, the applicant would have found a unit assignment in 2007. 2. The applicant was transferred to the USAR Control Group (Reinforcement) on 25 January 2007 due to personal reasons. According to counsel's statement, the applicant was advised that his MOS had been removed when he was looking for a unit assignment on 8 March 2008. Therefore, the evidence does not support the contention that the applicant would have found a unit assignment in 2007 had it not been for the HRC administrative error. 3. There is no substantive evidence the applicant would have found a unit assignment in 2007 if it had not been for the administrative error by HRC. Searching for a unit assignment is a volitional act. Therefore, a determination as to whether or not he was searching for a unit assignment or whether he would have found a unit assignment cannot be made. 4. During the applicant's RYE 26 March 2006 and 26 March 2007 he failed to attain the required 50 retirement points. He was not transferred from a troop program unit until 25 January 2007. Therefore, there is insufficient basis to show he would have attained the required 50 retirement points had he found a unit assignment. 5. In view of the above, there is insufficient basis for awarding unearned retirement points for qualifying years of service for retirement. 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) AR20100009640 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont)