IN THE CASE OF: BOARD DATE: 8 May 2014 DOCKET NUMBER: AR20130013174 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, the wife of a deceased former service member (FSM), requests correction of the FSM’s record to show he was retired. 2. The applicant states the FSM was unjustly released from the Army National Guard (ARNG), without reason, 5 days before his retirement. 3. The applicant provides: * certificate of birth * certificate of death * marriage license * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The FSM enlisted in the Regular Army on 1 February 1967 and served through one extension. He was honorably released from active duty on 30 April 1971 and transferred to U.S. Army Reserve (USAR) Control Group (Reinforcement). 3. On 9 December 1972, he enlisted in the Indiana ARNG (INARNG) and served through a series of extensions until 4 March 1978. 4. On 5 March 1978, he enlisted in the USAR and served through a series of reenlistments and extensions. 5. His record contains an undated memorandum, entitled “Weight Control Program,” issued by the 417th Quartermaster Company, USAR, Scottsburg, IN. This memorandum informed the FSM that he was 22 to 27 pounds over the weight standards prescribed in Army Regulation 600-9 (The Army Weight Control Program). He had until 12 July 1980 to bring his weight down to the prescribed standard; which was 192 to 197 pounds. If this was not accomplished by 12 July 1980 he would be ordered to undergo a complete physical and a military physician would place him on a strict diet. He was also informed that failure to comply could result in disciplinary actions being taken. He signed and acknowledged receipt of this notification on 13 April 1980. 6. His record contains a DA Form 4700 (Body Fat Composition Record), dated 1 March 1983, which shows the FSM exceeded the maximum weight and body fat composition. 7. His record contains an undated memorandum entitled “Weight Control Program,” issued by the 417th Quartermaster Company, USAR, Scottsburg, IN. This memorandum stated that the FSM was weighed in September 1983. His weight was recorded as 199 pounds and his height as 69 inches. His weight was not within the standards set by Army Regulation 600-9, which indicated that 184 pounds was the maximum weight for his height. a. This memorandum indicated that a form referring him for a medical evaluation was attached to the memorandum. The evaluation was meant to determine whether or not he was overweight, obese, or if there were any medical reasons to prevent him from participating in a weight control program consisting of diet and exercise. His appointment at the medical facility was scheduled for 16 November 1983. b. He was informed that if he was placed in a weight control program, that during the time he spent in the program he may be ineligible for any favorable personnel actions. He was further informed that if he failed to meet the standards while he was in the weight control program within the prescribed period of time he could be barred from reenlistment or separated from the service. 8. His record contains a monthly weigh-in results form. This form shows he was enrolled in the weight control program on 19 November 1983 with the starting weight of 199 pounds and the goal weight of 189 pounds. This form also shows that on: * 4 December 1983 he weighed 197 pounds * 8 January 1984 he weighed 201 pounds * 5 February 1984 he weighed 203 pounds 9. His record contains a DA Form 268 (Report for Suspension of Favorable Actions (FLAG)), dated 3 December 1983 which shows a FLAG was initiated because he exceeded weight and body fat standards in accordance with Army Regulation 600-9. The FLAG was approved on 29 January 1984. 10. His record contains a record of counseling session, dated 8 January 1984, which shows the FSM read his unit's standing operating procedures for weight control (again). He was advised that he had gained 4 pounds since his last weigh-in and was reminded that no weight loss in two consecutive months would result in being sent back to the hospital for a reevaluation. 11. His record contains a memorandum issued by his unit on 17 January 1984 to inform him that he was scheduled for a skin fold caliper test on 22 January 1984 at the U.S. Army Hospital in Louisville, KY. He was informed that failure to meet the appointment would result in disciplinary action and/or possible elimination from the USAR program. However, the bottom of this memorandum contains a note from the FSM which states that he was unable to make the appointment due to car trouble and wished to reschedule the appointment. 12. His record contains a counseling session record, dated 5 February 1984, which shows he was scheduled for a reevaluation on 22 January 1984 but was unable to make the appointment due to car trouble. He was rescheduled for his reevaluation on 18 February 1984. If he was unable to lose the weight by his reevaluation on 19 February 1984 then he would be separated as a result on his expiration term of service (ETS) date of 4 March 1984. This counseling further shows the FSM indicated that he would do everything within his power to lose the weight since he had 17 years of service. 13. His record contains a Request for Discharge, dated 5 March “1983: (i.e., 5 March 1984) wherein the FSM’s chain of command requested he be discharged upon his ETS on 4 March 1984. His chain of command recommended he receive an honorable discharge and stated the justification for the discharge request was that he had not met the weight requirements established in Army Regulation 600-9 in that he did not meet the body fat standard. 14. His record does not contain any discharge orders; however, it appears he was separated/discharged from the USAR upon his ETS of 4 March 1984. 15. His record contains an NGB 22 which shows he enlisted in the INARNG on 15 August 1985 and was honorably separated on 1 August 1988, at his request, and transferred to USAR Control Group (Reinforcement) to complete his remaining contractual obligation. 16. The FSM’s records indicate that he or his family filed a Congressional complaint/request for his retirement. The U.S. Army Human Resources Command (HRC) responded to this request/inquiry on or around 26 October 2006 in a memorandum which stated: a. The FSM’s military service record was reviewed and no additional retirement points were found. Also, a search was completed at the Defense Finance and Accounting Service (DFAS) with negative results. HRC stated that an ARPC Form 606-E (Retirement Points Statement of Service), NGB Form 22, and discharge orders were being included with the memorandum. b. HRC had been unable to locate a copy of the FSM’s original discharge order which was issued upon his ETS. In accordance with Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), dated 1 September 1994, the removal date will become effective on the date of the current discharge order and will not be retroactive. This does not entitle the FSM to any additional retirement points or other benefits after his normal ETS date of 14 August 1989. c. HRC included the following documents: (1) NGB Form 22 which shows he enlisted in the INARNG on 15 August 1985 and was honorably separated on 1 August 1988. (2) Orders Number D-11-628748, issued by HRC, on 30 November 2006, honorably discharged him from the USAR effective 30 November 2006, in accordance with Army Regulation 135-178 (Enlisted Administrative Separations). (3) ARPC 600-E which shows he served in the: (a) Regular Army from 1 February 1967 to 30 April 1971 and was credited with 5 good years for retirement (50 or more retirement points per year). * From 1 February 1967 to 31 January 1968: 365 points * From 1 February 1968 to 31 January 1969: 365 points * From 1 February 1969 to 31 January 1970: 365 points * From 1 February 1970 to 31 January 1971: 365 points * From 1 February 1971 to 30 April 1971: 87 points (b) USAR form 1 May 1971 to 2 October 1972; however, he did not earn enough retirement points to be credited with a good year for retirement during this period. * 1 May 1971 to 30 April 1972: 15 points * 1 May 1972 to 2 October 1972: 6 points (c) ARNG from 9 December 1972 to 4 March 1978 and was credited with completing 5 good years for retirement. * From 9 December 1972 to 8 December 1973: 82 points * From 9 December 1973 to 8 December 1974: 79 points * From 9 December 1974 to 8 December 1975: 74 points * From 9 December 1975 to 8 December 1976: 74 points * From 9 December 1976 to 8 December 1977: 78 points * From 9 December 1977 to 4 March 1978: 18 points (d) USAR from 5 March 1978 to 14 March 1984 and was credited with completing 4 good years for retirement. * From 5 March 1978 to 8 December 1978: 66 points * From 9 December 1978 to 8 December 1979: 64 points * From 9 December 1979 to 8 December 1980: 51 points * From 9 December 1980 to 8 December 1981: 51 points * From 9 December 1981 to 8 December 1982: 15 points * From 9 December 1982 to 8 December 1983: 15 points * From 9 December 1983 to 14 March 1984: 4 points (e) ARNG from 15 August 1985 to 1 August 1988 and was credited with completing 1 good year for retirement. * From 15 August 1985 to 14 August 1968: 55 points * From 15 August 1986 to 14 August 1987: 15 points * From 15 August 1987 to 1 August 1988: 12 points (f) USAR from 2 August 1988 to 14 August 1989; however, he did not earn enough retirement points to be credited with a good year for retirement during this period. * From 2 August 1988 to 1 August 1989: 15 points * From 2 August 1989 to 14 August 1989: 12 points 17. Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers. 18. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve components Soldiers. a. Paragraph 2-1 states that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained the age of 60, completed a minimum of 20 years of qualifying service, and have served the last 8 years of his or her qualifying service as a Reserve component Soldier. b. Paragraph 2-8 states that a Reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. Only Soldiers assigned to an active status in a Reserve Component or individual inactive Federal service are authorized to earn retirement point credits. When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service. DISCUSSION AND CONCLUSIONS: 1. The evidence of record indicated that the FSM was discharged from the USAR upon his normal ETS of 14 August 1989. Furthermore, since he had not completed 20 qualifying years of service for retirement he was not eligible to retire. The FSM completed 15 good years for retirement. During his active service, he was credited with 5 good years and during his Reserve service he was credited with 10 good years or 10 years in which he earned 50 or more retirement points. 2. Retirement years for Reserve Soldiers are not based on the number of calendar years they served. Retirement years are based on the number of years the Soldier earned 50 or more retirement points. At the time, a Reserve Soldier must have earned 50 or more retirement points per year for a total of 20 years to be eligible for retirement. 3. Based on the foregoing, there is insufficient evidence to grant the 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) AR20130013174 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130013174 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1