BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150004650 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 retroactive transfer to the Retired Reserve. 2. The applicant states: * he served 20 years and he received an honorable discharge * he believes the Regional Level Application Software and Standard Installation/Division Personnel System was coded as end of term of service instead of 20 years of service * he is a "gray area" retiree and he desires to utilize his "gray area" entitlements immediately via the Defense Enrollment Eligibility Reporting System (DEERS) identification (ID) card system * he is coded as a former member of the Armed Forces in DEERS 3. The applicant provides: * self-authored letter, dated 26 February 2015 * Notification of Eligibility for Retired Pay at Age 60 (20-year letter), dated 26 December 2001 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 applicant was born on 30 May 1960. 3. After having prior honorable enlisted service in the U.S. Army Reserve (USAR), he again enlisted in the USAR on 1 October 1983. 4. On 7 January 1992, he was transferred to the USAR Control Group (Reinforcement). 5. On 10 July 1992, he was discharged from the USAR Control Group (Reinforcement) and he enlisted in the Army National Guard. 6. On 23 March 1994, he was discharged from the ARNG for unsatisfactory participation and he was transferred to the USAR Control Group (Reinforcement). His service was characterized as general under honorable conditions. 7. On 7 June 1998, he reenlisted in the USAR for a period of 6 years in a troop program unit. 8. On 26 December 2001, the USAR Personnel Command issued his notification of eligibility for retired pay at age 60 (20-year letter). He was advised that he had completed the required years of Reserve service and was eligible for retired pay at age 60 upon application. This letter further notified him that he must earn a minimum of 50 points each retirement year to retain his active status. 9. His U.S. Army Human Resources Command (HRC) Form 249-E (Chronological Statement of Retirement Points), dated 12 January 2015, shows he had 20 qualifying years for Reserve retirement and his final retirement year ending date as 17 April 2002, indicating this was his last day in an active status. 10. His records are void of orders or other documentary evidence showing he requested transfer to the Retired Reserve at the time of his separation from a USAR troop program unit on 17 April 2002. 11. Correspondence filed in his records in the HRC Soldier Management System shows: a.  On 8 January 2015, he contacted HRC and requested transfer to the Retired Reserve retroactive to 17 April 2002. He further indicated he had attempted to obtain a military Retired Reserve ID card; however, DEERS had him listed as a former member of the Armed Forces. He also indicated: * officials at HRC told him his discharge status was listed as voluntary hardship other than parenthood * he received his 20-year letter and he was never afforded the opportunity to attend a retirement seminar * had his unit properly counseled him in writing, he would have made an informed decision to transfer to the Retired Reserve * his current status impacted his retired pay * he desired to be transferred to the Retired Reserve to receive "gray area" retirement benefits b.  On 12 January 2015 and 6 February 2015, HRC referred him to the ABCMR. 12. Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers. Chapter 4 prescribes policy and procedures governing the voluntary or involuntary assignment, reassignment, or transfer of a Soldier to and from the various control groups. Section III prescribes the policy and identifies the conditions governing the transfer or reassignment of enlisted Soldiers from the Selected, Standby, and Retired Reserve to an appropriate control group. 13. Army Regulation 140-10, chapter 6 (Transfer to and from the Retired Reserve), section I (Transfer to the Retired Reserve), states assignment to the Retired Reserve is authorized under specific conditions. Eligible Soldiers must request transfer if they have completed a total of 20 years of active or inactive service in the U.S. Armed Forces. 14. Soldiers in the Retired Reserve are required to present their 20-year letters and transfer or separation orders to the nearest military ID card facility to obtain a benefits card. 15. Army Regulation 135-180 (Army National Guard and Army Reserve – Qualifying Service for Retired Pay Non-Regular Service), in effect at the time, implemented statutory authorities governing granting retired pay to Soldiers and Reserve Component Soldiers. It stated that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age 60, completed a minimum of 20 years of qualifying service, and served the requisite number of years of his or her qualifying service as a Reserve Component Soldier. Soldiers who had received 20-year letters could make application for retired pay 6 months prior to reaching age 60. 16. Army Regulation 135-180 now states it is the responsibility of each qualified individual to submit his or her application for retired pay. The DD Form 108 (Application for Retired Pay Benefits) is the only form on which application for this pay will be made. Approximately 6 months prior to reaching age 60, eligible Soldiers assigned to the Retired Reserve will receive a DD Form 108 from HRC. Individuals who do not hold a current military status may obtain a DD Form 108 from offices of State Adjutants General; Reserve training centers; or from the Commander, HRC, Attention: AHRC-PDR-RCR, 1600 Spearhead Division Avenue, Department 420, Fort Knox, KY  40122-5402. 17. Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) and Department of Defense Instruction 1215.07 (Service Credit for Non-Regular Retirement) governs awarding and crediting of retirement points. By requesting transfer to the Retired Reserve, a member enters a status in which retirement points no longer can be accumulated. Time in the Retired Reserve counts towards longevity service for retired pay. DISCUSSION AND CONCLUSIONS: 1. The applicant was eligible for transfer to the Retired Reserve on 26 December 2001. 2. The evidence of record indicates he voluntarily chose not to have any Reserve affiliation at the time of his discharge. There is no evidence in the available records showing he requested transfer to the Retired Reserve prior to 17 April 2002. 3. Although there is no requirement for an individual to be a member of the Retired Reserve in order to receive retired pay at age 60 if otherwise qualified, there may be financial advantages to transferring to the Retired Reserve versus being discharged. 4. In the applicant's case, transferring to the Retired Reserve would have provided him with additional years of service for longevity purposes and, as such, a higher basic pay rate would be used in calculating his retired pay. The continuation of pay increases for members serving in the Retired Reserve are based on the continued availability of those members for recall to an active status in National emergency situations. 5. Because he had no military status, he was not available for recall to active duty during a period of National emergency following the 11 September 2001 attacks on the United States. It would not be appropriate to correct his records solely for the purpose of entitling him to credit for service he did not perform and for pay increases he did not earn. 6. In the absence of evidence showing he was improperly discharged or improperly denied the opportunity to request transfer to the Retired Reserve, there is no basis for granting 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 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) AR20150004650 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004650 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1