IN THE CASE OF: BOARD DATE: 28 January 2016 DOCKET NUMBER: AR20150005147 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 correction of his military records to reflect he is credited with 20 years of qualifying service, entitling him to retired pay at age 60 at the rank/grade of captain/O-3, the highest rank/grade he held. 2. The applicant states: * he began his military career after high school in 1972 when he volunteered for the draft during the Vietnam era * after completion of his active duty service, he enlisted in the U.S. Army Reserve and served until he was commissioned in 1979 * in 1987, he joined the Georgia Army National Guard * in 1997, he was reviewed by the Qualitative Retention Board which was unaware of his total years of service * at the time of his discharge from the Georgia Army National Guard, he had 19 years, 2 months, and 11 days of service toward the 20 years needed to be eligible for retired pay at age 60 which should have locked him in for continued service until he obtained the required 20 years * he was never given his notice of eligibility for retired pay at age 60, commonly referred to as the 20-year letter * he believes the unit clerk and the administration did not properly review and process his records due to the unit's realignment and reorganization after activation for Operations Desert Shield/Desert Storm * the realignment left his unit without an active military member serving as the unit administrator * the only unit clerk was a retired member working part-time, with no other points of contact, resulting in his records not being correctly reviewed and processed * the Retirement Points Account Management System shows his highest rank/grade held as sergeant/E-5, but he attained the rank of captain while serving on active duty in 1983 * at discharge he received a Reserve military identification card bearing the rank of captain which included commissary privileges that expired on his 60th birthday at which time he anticipated he would have received his retiree identification card * only after his 60th birthday did he realize he was unjustly separated with 19 years, 2 months, and 11 days of service * he believes the error is the result of either incorrect discharge dates or non-credit toward total service rendered as, according to his calculation, he served 20 good years * if he did not serve 20 good years, he should have been locked in to obtain 20 years of service prior to his discharge 3. The applicant provides: * self-authored statement * DD Form 214 (Report of Separation from Active Duty) covering the period 1 September 1972 through 20 August 1974 * DD Form 214 (Certificate of Release or Discharge from Active Duty) covering the period 25 July 1979 through 5 October 1984 * DD Form 215 (Correction to DD Form 214) for DD Form 214 with a separation date of 5 April 1991 * 2nd Battalion, 121st Infantry Regiment, Georgia Army National Guard, memorandum, dated 7 December 1997, subject: Notification of Qualitative Retention Review * 2nd Battalion, 121st Infantry Regiment, Georgia Army National Guard, memorandum, dated 18 December 1997, subject: Request for Verification of 20 years for Retired Pay * Georgia Army National Guard Orders 024-005, dated 9 February 1999 * Army National Guard Retirement Points History Statement, dated 16 July 2014 * partial DA Form 2-1 (Personnel Qualification Record – Part II) 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 enlisted in the Regular Army on 1 September 1972. On 20 August 1974, he was released from active duty due to completion of required active service and transferred to the U.S. Army Reserve Control Group (Annual Training). His DD Form 214 shows his rank as specialist four and he completed 1 year, 11 months, and 29 days of active service during this period. 3. After graduation from Albany State College and completion of Reserve Officers' Training Corps instruction, he was appointed as a Reserve commissioned officer of the Army in the rank/grade of second lieutenant/O-1 on 3 June 1979. On 9 March 1981, he was promoted to the rank/grade of first lieutenant/O-2 and he was promoted to the rank/grade of captain/O-3 on 1 July 1983. 4. On 11 July 1984, he appeared before a board of inquiry to show cause for retention in the Army due to substandard performance of duty. Records indicate he was being eliminated from the Army for failing to maintain pace with his contemporaries by failing to complete the Armor Officer Advanced Course. The board recommended his elimination from the service. His request for resignation in lieu of elimination was approved on 22 August 1984. On 5 October 1984, he was honorably discharged from active duty in the rank of captain/O-3 in the U.S. Army Reserve due to substandard performance. He was credited with 5 years, 2 months, and 11 days of active service during this period. 5. On 31 July 1987, enlisted in the Army National Guard at the rank/grade of specialist/E-4. Records indicate he was activated with his Army National Guard unit on 30 November 1990 and released from active duty on 5 April 1991. He was credited with 4 months and 6 days of active service during that period. On 2 August 1991, he was promoted to the rank/grade of sergeant/E-5. 6. 2nd Battalion, 121st Infantry Regiment, Georgia Army National Guard, memorandum, dated 7 December 1997, subject: Notification of Qualitative Retention Review, informed the applicant that he was scheduled for review by the qualitative retention board which would convene during the month of March 1998 to select the best qualified personnel for continued membership. He was informed that should he not be selected for retention, he would be discharged from military service and such a discharge would not affect his retirement eligibility. 7. 2nd Battalion, 121st Infantry Regiment, Georgia Army National Guard, memorandum, dated 18 December 1997, subject: Request for Verification of 20 Years for Retired Pay, shows verification of the applicant's 20 years of service for retired pay was requested in order to complete his packet for the enlisted qualitative retention board. The resulting verification or non-verification is not in his available records for review. There is no evidence of record he was ever issued a 20-year letter. 8. No further documents pertaining to the qualitative retention board or its results are in the applicant's available records for review. It is presumed he was not selected for retention. Georgia Army National Guard Orders 024-005, dated 9 February 1999, honorably discharged him from the Army National Guard effective 9 February 1999. His rank/grade at the time of discharge was sergeant/E-5. He was not transferred to the Retired Reserve. 9. The applicant provided an Army National Guard Retirement Points History Statement, dated 16 July 2014, showing he earned 3,659 total points for retired pay with 19 years, 2 months, and 11 days of creditable service for retired pay. 10. This statement shows he did not earn the minimum 50 points necessary during retirement years ending (RYE) 31 August 1975, 31 August 1977, 31 August 1978, and 30 July 1999 to be credited with a qualifying year. However, in all other years of creditable service he earned retirement points which exceeded the minimum 50 points required for a qualifying year. 11. The Defense Finance and Accounting Services confirmed an application for retired pay pertaining to the applicant has not been submitted to its office for processing. 12. Title 10, U.S. Code, section 12731, states that except as provided in subsection (c), a person is entitled, upon application, to retired pay computed under section 12739 of this title if the person is at least 60 years of age, has performed at least 20 years of qualifying service computed under section 12732 of this title, and is not entitled under any other provision of law to retired pay from an Armed Force. A qualifying year is determined to be a year in which the Reserve member was credited with a minimum of 50 points. 13. Title 10, U.S. Code, section 12731(d), states that the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay. The notice shall be sent, in writing, to the person concerned within 1 year after the person completes that service. Section 12738(a) states that after a person is notified that he or she has completed the years of service required for eligibility for retired pay, the person's eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service unless it resulted directly from the fraud or misrepresentation of the person. 14. Title 10, U.S. Code, section 1176(b), states that effective 23 October 1992, a Reserve enlisted member serving in an active status who is selected to be involuntarily separated (other than for physical disability or for cause), or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause), and who on the date on which the member is to be discharged or transferred from an active status is entitled to be credited with at least 18 but less than 20 years of service computed under section 12732 of this title, may not be discharged, denied reenlistment, or transferred from an active status without the member's consent before the earlier of the following – if, as of the date on which the member is to be discharged or transferred from an active status, the member has at least 18 but less than 19 years of service computed under section 12732 of this title: a. the date on which the member is entitled to be credited with 20 years of service computed under section 12732 of this title or b. the third anniversary of the date on which the member would otherwise be discharged or transferred from an active status. 15. Title 10, U.S. Code, section 1406 states a person who is entitled to non-regular service retirement pay is entitled to retired pay at the rate of the highest grade held satisfactorily by the person at any time in the Armed Forces. The highest grade in which a person served satisfactorily as an officer shall be determined in accordance with section 1370(d) of this title. 16. Title 10, U.S. Code, section 1370, states: a. Unless entitled to a higher grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) who retires under any provision of law other than chapter 61 or chapter 1223 of this title shall, except as provided in paragraph (2), be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than 6 months. b. Unless entitled to a higher grade, or to credit for satisfactory service in a higher grade, under some other provision of law, a person who in entitled to retired pay under chapter 1223 of this title shall, upon application under section 12731 of this title, be credited with satisfactory service in the highest grade in which that person served satisfactorily at any time in the Armed Forces, as determined by the Secretary concerned in accordance with this subsection. c. In order to be credited with satisfactory service in an officer grade (other than a warrant officer grade) below the grade of lieutenant colonel or commander, a person covered by paragraph (1) must have served satisfactorily in that grade (as determined by the Secretary of the military department concerned) as a Reserve commissioned office in an active status, or in a retired status on active duty, for not less than 6 months. 17. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) governs the actions and composition of the Army Grade Determination Review Board in determining or recommending the highest grade satisfactorily held for service/physical disability retirement, retirement pay, and separation for physical disability. a. Paragraph 2-3 states most grade determinations do not require action by the Army Grade Determination Review Board or the exercise of discretion by other authorities because they are automatic grade determinations that result from the operation of law. b. Paragraph 2-4 states a grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay. Although a lower grade determination may affect an individual adversely, it is not punitive. c. Paragraph 2-5 states service in a higher grade will normally be considered unsatisfactory if reversion to a lower grade was expressly for prejudice or cause, owing to misconduct, caused by nonjudicial punishment pursuant to Article 15 of the Uniform Code of Military Justice, or the result of the sentence of a court-martial. It also states that service will be considered unsatisfactory if there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory. One specific act of misconduct may or may not form the basis for a determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade. However, service retirement in lieu of or as the result of elimination action will not, by itself, preclude retirement in the highest grade. d. Paragraph 2-6 states, if service in the highest grade held was unsatisfactory, the Soldier can be deemed to have serve satisfactorily in the next lower grade actually held unless paragraph 2-5 applies. 18. Army Regulation 135-180 (Army National Guard and Army Reserve – Retirement for Non-Regular Service) prescribes policies and procedures governing non-regular retirement. It states: a. It is the responsibility of all qualified individuals to submit their application for retired pay no earlier than 9 months and no later than 90 days prior to the date retired pay is to begin. b. Applications must be submitted on a DD Form 108 (Application for Retired Pay Benefits) and DD Form 2656 (Data for Payment of Retired Personnel). The application will include a Standard Form 1199a (Direct Deposit Sign-up) from the Soldier's financial institution and any additional supporting documents required. The highest grade held will be placed in block 4 (Highest Military Paygrade Held) of the DD Form 108. c. Upon receipt of the DD Form 108, the U.S. Army Human Resources Command will screen each retirement applicant's records to determine the highest grade held in the Armed Forces. In arriving at the highest grade satisfactorily held, if the Soldier was transferred to the Retired Reserve or discharged on or after 25 February 1975, the retired grade will be that grade which a commissioned officer or enlisted Soldier held while serving on active duty or in an active Reserve status for at least 185 days or 6 calendar months. d. Service in the highest grade will not be deemed satisfactory and the case will be forwarded to the Secretary of the Army's Ad Hoc Review Board for final determination of the Soldier's retirement grade if during the mandatory review of the Soldier's records it is determined that revision to a lower grade was expressly for prejudice or cause, due to misconduct, or nonjudicial punishment pursuant to the Article 15 of the Uniform Code of Military Justice or court-martial, or there is information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily. 19. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for correction of his military records to reflect he is credited with 20 years of qualifying service, entitling him to retired pay at age 60 at the rank of captain/O-3 was carefully considered. 2. The evidence of record indicates he was promoted to the rank of captain on 1 July 1983. On 11 July 1984, he appeared before a board of inquiry to show cause for retention in the Army due to substandard performance of duty resulting from his inability to complete the Armor Officer Advanced Course. The board recommended his elimination from the service and he requested resignation in lieu of elimination. His request was approved and on 5 October 1984 and he was honorably discharged from active duty in the rank of captain in the U.S. Army Reserve due to substandard performance. 3. Subsequent to his discharge from active duty as a commissioned officer, he enlisted in the Army National Guard in the rank/grade of specialist/E-4 and was promoted to the rank/grade of sergeant/E-5 on 2 August 1991. 4. The complete facts and circumstances surrounding his discharge from the Army National Guard are not in the applicant's available records for review. It is presumed that his discharge subsequent to a qualitative retention board held in March 1998 was accomplished in accordance with all applicable laws and regulatory guidance and his rights were retained throughout the process. On 9 February 1999, he was discharged from the Army National Guard in the rank/grade of sergeant/E-5. 5. Records indicate at the time of his discharge from the Army National Guard, he was credited with a combined 19 years, 2 months, and 11 days of creditable service for retired pay. 6. By virtue of his 18 or more years but less than 20 years of qualifying service, he should have been granted sanctuary at the time to enable him to complete the requisite 20 years of service for retired pay prior to his discharge. 7. His Army National Guard Retirement Points History Statement shows that during RYE 31 August 1977, the applicant earned 39 creditable retirement points, 11 points short of earning the minimum 50 points necessary to be credited with a qualifying year. However, during multiple subsequent years he earned retirement points which exceeded the minimum 50 points required for a qualifying year. In the interest of equity and justice, it would be appropriate to redistribute the necessary creditable retirement points to RYE 31 August 1977 in order to render it a qualifying year, thus making him retirement eligible for benefits at age 60. 8. Legal statute entitles each person who has completed the years of service required for eligibility for retired pay at age 60 to a written notice of eligibility for retired pay, which the applicant did not receive. 9. A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married). This correction of records may have an effect on the applicant's SBP status/coverage. The applicant should be directed to contact his nearest Retirement Services Officer for information and assistance immediately. A listing of Retirement Services Officers by country, state, and installation is available on the Internet at https://soldierforlife.army.mil/retirement/sbp. 10. Upon receipt of a Notification of Eligibility for Retired Pay at Age 60 (20-year letter), the applicant is advised to complete and submit a DD Form 108, applying for retired pay, as there is no evidence of record indicating he ever submitted such an application. In block 4, he should enter his highest grade held and the U.S. Army Human Resources Command will make a grade determination upon receipt and processing of his application for retired pay in keeping with regulatory guidance. BOARD VOTE: ___x____ ___x____ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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: a.  redistributing creditable retirement points to RYE 31 August 1977 to make it a qualifying year for retirement and showing he completed 20 qualifying years for retirement, b.  issuing him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) with an effective date of 9 February 1999 with Survivor Benefit Plan guidance, and c.  issuing him orders transferring him to the Retired Reserve effective 9 February 1999. ___________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) AR20150005147 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005147 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1