BOARD DATE: 27 September 2016 DOCKET NUMBER: AR20150010894 BOARD VOTE: ___ x______ __ x_____ _ x__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: x DOCKET NUMBER: AR20150010894 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 issuing the applicant a Notification for Eligibility for Non-Regular Retired Pay at Age 60 (15-Year Letter) with instructions on how to apply for retired pay and how to enroll in the Survivor Benefit Plan. __________ 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. BOARD DATE: 27 September 2016 DOCKET NUMBER: AR20150010894 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 a Notification of Eligibility for Retired Pay at Age 60 for 15 years of qualified service (15-Year Letter). 2. The applicant states, in effect: * due to the restructuring of the 91st Division (Exercise), 96th Army Reserve Command, his unit commander told him that then-President Clinton had lowered the required time for retirement to 15 years * his commander asked for volunteers to retire early, and the applicant volunteered with the understanding he would receive retirement benefits at age 60 * when he turned 60 years of age in 2014, he learned he did not qualify for retirement * he is now disabled and could really use the benefits 3. The applicant provides: * Army Reserve Personnel Center (ARPC) Form 249-E (Chronological Statement of Retirement Points), dated 17 May 2013 * Orders 02-17, dated 11 January 1996 (identified as retirement letter) 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 XX January 1954. He became 60 years of age on XX January 2014. 3. He enlisted in the U.S. Army Reserve (USAR) on 23 November 1979. Following initial training, he was awarded military occupational specialty (MOS) 91B (Medical Specialist). He served continuously through reenlistments and extensions as a Troop Program Unit (TPU) Soldier in the USAR. He was promoted to the rank of sergeant first class (SFC) effective 1 July 1995. 4. His available military service record is void of any documents showing he applied for early retirement. His record does, however, contain the following: a. Orders Number 29-33, dated 17 April 1995, issued by Headquarters, 91st Division (Exercise), showing the applicant was reassigned from 3rd Battalion, 361st Regiment to the 2nd Battalion, 361st Regiment. The reason was reorganization. b. Orders Number 02-17, dated 11 January 1996, issued by Headquarters, 91st Division (Exercise), indicating the applicant was transferred to the Army Personnel Center (ARPERCEN) (Retired). His MOS is listed as 91B30 and his rank is staff sergeant (SSG). The authority is Army Regulation (AR) 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers). The loss code is "JG." 5. An official from the U.S. Army Human Resources Command (HRC), Reserve Components Retirements Branch, provided an advisory opinion, dated 8 March 2016. The official stated: a. The applicant served 16 years, 00 months, and 00 days of qualifying service for non-regular retirement. To be eligible for a 15-year retirement, a Soldier must be medically retired and serving in a unit that was downsized, deactivated, or relocated at the time the Soldier attained 15 years of service. b. AR 135-180 (Retirement for Non-Regular Service), paragraph 2-2 (Basic Qualifying Service Requirements) states a Reserve Soldier requesting a 15-year retirement under the provisions of Title 10, U.S. Code 12732 (Entitlement to Retired Pay: Computation of Years of Service) must be separating because they have been determined to be unfit for continued Selected Reserve service. c. It is their opinion that the applicant volunteered to be placed in the Retired Reserve knowing he had only 16 years of qualifying service, and that he did not qualify for a 15-year retirement. Their office recommends denying the applicant's request for relief. A copy of the applicant's DA Form 5016 (Chronological Statement of Retirement Points) was provided. 6. The applicant was given a copy of the advisory opinion. On 6 April 2016 he provided a response essentially stating: a. His unit approached him in 1995 concerning early retirement to support the reduction of military forces as directed by then-President Clinton. b. At that time he had 16 years of service and was told the Secretary of the Army had been given the authority to allow the retirement of Soldiers with between 15 and 20 years of service. The retirement benefits for early retirement were to be the same as those for Soldiers retiring with 20 qualified years of service. c. He retired in good faith believing those benefits would be available to him at age 60. Had he known there would be a question about receiving benefits, he would have served the additional 4 years required for a 20-year retirement. d. He enclosed a copy of that portion of the National Defense Authorization Act (NDAA) of Fiscal Year 1993 (FY 1993) that addressed the Temporary Early Retirement Authority (TERA) between FY 1993 to FY 2001. 7. An official from the Office of the Deputy Chief of Staff (DCS), G-1, Army Retirement Services, provided an advisory opinion dated 31 August 2016. It essentially stated: a. The applicant received a transfer order into the Retired Reserve on 11 January 1996, with an effective date of 15 December 1995. The loss code used on the order was "JG." (1) According to the Automated Data Systems Manual for the Total Army Personnel Data Base – Reserve, the "JG" loss code indicated reassignment from the Ready Reserve to the Retired Reserve after completion of 20 or more years of service in the Reserve (emphasis added). (2) Reassignment using this loss code indicates the Soldier was eligible for a non-regular retirement. b. The NDAA of FY 1993 stated, during the active force drawdown period, the Secretary of the Army could apply the provisions of section 3914 (referring to chapter 367 (Retirement for Length of Service) of Title 10, U.S. Code) to enlisted Soldiers with at least 15, but less than 20 qualified years of service. c. The Army Policy Announcement for FY 1994 expired on 26 July 1995, and applied only to enlisted Soldiers on active duty. The applicant transferred to the Retired Reserve on 15 December 1995, and thus was outside the window of the aforementioned announcement. An Army Policy Announcement for the period after 26 July 1995 could not be found, and as such the official could not definitively say if TERA was, or was not authorized for an Army Reserve enlisted Soldier at that time. d. There is no evidence the applicant applied for early retirement or received a 15-Year Letter, but he was issued a transfer order into the Retired Reserve. Additionally, his DA Form 5016 shows he completed 16 years of creditable service. Although the orders show an erroneous loss code, it is reasonable to assume he was entitled to a non-regular retirement. In the interest of fairness, the DCS, G-1 official recommends the applicant be issued a 15-Year Letter. 8. The Case Management Division of the Army Review Boards Agency provided the applicant a copy of the advisory opinion. On 16 September 2016, he responded that he concurred with the advisory opinion from the DCS, G-1. REFERENCES: 1. AR 135-180, implements statutory authorities governing the granting of retired pay for Reserve Component (RC) Soldiers. Paragraph 2-2 states, under the provisions of Title 10, U.S. Code, section 12732, RC Soldiers must either have: * minimum of 20 qualified years of service; or * between 15, but less than 20 years of qualified service in those cases where the RC Soldier is separated as a result of being found unfit for continued RC service 2. Congress enacted the TERA on 23 October 1992 as part of the NDAA of FY 1993. a. Its intent was to assist in the military draw-down of forces by permitting selected military members to retire early when they had between 15 and 20 years of service. b. The Secretaries or the respective services designated the ranks and military specialties that were eligible to apply according to the needs of the service. Retirement under this program was not a right, it was granted on an individual basis according to the requirements of the service. c. The TERA program ended in 2002. 3. Also enacted as part of NDAA for FY 1993 was Title 10, U.S. Code, section 12731a (Temporary Special Retirement Qualification Authority), which stated: a. The Secretary concerned may, during the period 23 October 1992, and ending 31 December 2001, determine to treat a member of the Selected Reserve as having met the service requirements to be transferred to the Retired Reserve, and provide the member with the written notification required. b. The member must either have completed 15 years of service as of 1 October 1991, or after that date, but before 31 December 2001. c. The Secretary concerned may limit the applicability to any category of personnel needed to reduce the number of members in certain grades, years of service, certain military skills, or designated competitive categories. 4. AR 140-10, in effect at the time, prescribed policies and procedures for the assigning, attaching, removing, and transferring USAR Soldiers. It addressed transfer to the Retired Reserve in chapter 6 (Transfer to and from the Retired Reserve). a. Assignment to the Retired Reserve is authorized after a request made by the eligible Soldier based on one of the following: * entitled to received retired pay from the Armed Forces because of prior military service * completed a total of 20 years of active or inactive service in the Armed Forces * medically disqualified for active duty resulting from a service-connected disability * "appointment" based on the condition the Soldier immediately apply for transfer to the Retired Reserve * reached the age of 37, and completed a minimum of 8 years of qualifying Federal service under the provisions of Title 10, U.S. Code 1332(a)(2) (renumbered to section 12732 by Public Law 103-337, 5 October 1994) [refers to being credited with at least 50 points per year for retirement purposes] * completed 10 or more years of active Federal commissioned service * medically disqualified not as a result of own misconduct, for retention in an active status, or entry on active duty, regardless of the total years of service completed b. Orders transferring Soldiers to the Retired Reserve will cite paragraph 6-2, and state the reason for transfer. c. Soldiers transferred to the Retired Reserve will be furnished a DA Form 977 (Certificate of Transfer to Retired Reserve), except when transferred in the same grade as shown on their DD Form 363A (Certificate of Retirement). 5. AR 140-158 (Army Reserve – Enlisted Personnel Classification, Promotion, and Reduction), in effect at the time, prescribed policies and procedures for the classification, promotion, reduction, and grade restoration of enlisted Soldiers in the USAR. Regarding the acceptance of promotion to SFC, it stated when a Soldier accepted promotion, he/she voluntarily agreed to serve in the duty position to which promoted, and had to remain in that duty position for at least 12 months. 6. AR 15-185 (ABCMR) prescribes policies and procedures for the ABCMR. It states, in pertinent part, the ABCMR considers individual applications that are properly brought before it. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. c. Paragraph 3-1 states the Army, by law, may pay claims for amounts due to applicants as a result of correction of military records. 7. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. DISCUSSION: 1. The applicant requests a 15-Year Letter so that he can apply for a non-regular retirement. He contends, based on his commander's request, he volunteered for early retirement, and was assigned to the Retired Reserve under the provisions of the Temporary Early Retirement Authority. When he applied for retirement, his request was denied. 2. In NDAA FY 1993, Congress authorized the Secretary of the Army to offer early retirement to both Active Component and Selected Reserve Soldiers, provided they met certain requirements. Selected Reserve Soldiers had to have served at least 15, but less than 20, qualified years. Additionally, limitations could be set, based on the needs of the Army, as to which grades and MOS would be offered early retirement. Those Soldiers selected were to receive 15-Year Letters, affirming their eligibility for retirement. a. The evidence of record shows his unit issued an order assigning him to the Retired Reserve effective 15 December 1995. Apart from this order, his record contains no other documentation that might show the basis for this transfer. In addition, although the law required the issuance of a 15-Year Letter to Soldiers approved for early retirement, it is evident this letter was never provided. b. The advisory by HRC notes the current requirements for early retirement, however this case falls outside current regulatory guidance in that he is seeking relief under a particular provision: the Temporary Special Retirement Qualification Authority, Title 10, U.S. Code, section 12731a. * he appears to have met the eligibility criteria for this provision * despite the absence of supporting documentation, DCS, G-1 acknowledges it is reasonable to assume he was entitled to a non-regular retirement * in the interest of fairness, the DCS, G-1 official recommends the applicant be issued a 15-Year Letter //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010894 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010894 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2