IN THE CASE OF BOARD DATE: 5 May 2016 DOCKET NUMBER: AR20150011349 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 5 May 2016 DOCKET NUMBER: AR20150011349 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. IN THE CASE OF: BOARD DATE: 5 May 2016 DOCKET NUMBER: AR20150011349 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, the issuance of a 15-Year Letter and entitlement to retired pay at age 60. 2. The applicant states a. He was denied retirement pay and benefits at age 60 due to incomplete documents in his personnel file. A review of his military records revealed that two assignment orders were not present. Orders assigning him to an Individual Mobilization Augmentee (IMA) slot at U.S. Army Garrison (USAG), Fort Meade, MD, and follow-on orders, which assigned him to the Retired Reserve. In addition, the U.S. Army Human Resources Command (HRC) failed to initiate the proper certificate, which would have enabled him to retire under the provisions of the temporary early retirement authority (TERA), implemented 1993-2001. b. While assigned to USAG, he was attempting to request orders for 2 weeks activation for IMA duty. In discussion with the assignment officer at HRC, he stated that based upon his time in service (TIS) he was eligible for TERA under the additional provisions given to Reserve Soldiers. The Army allowed active duty Soldiers voluntary retirement and the same provisions were expanded to include all Reserve Soldiers as a reduction in force management tool. Upon counseling over the phone, his assignment officer issued retirement orders moving him onto the Retire Reserve. When discussing his packet for initiation of retirement entitlements and benefits with HRC, he was told that there were no orders for retirement in his records. It took several months to locate a copy of the orders. When he faxed a copy to the office, HRC officials told him that the orders were okay. Upon submitting his package, HRC officials verbally told him that the orders were not properly published and he would not be entitled to full benefits. However, no formal letter was sent to him by HRC of this fact. After waiting for several months, he submitted a DA form 1559 (Inspector General (IG) Action Request) to the HRC IG. The IG told him that his benefits were denied and the IG took the liberty to write that office letter of disapproval. c. After several months again of discussion of the validity of the retirement orders, he submitted a Congressional Inquiry, which was returned unfavorable. The review appeared to have been accomplished by the exact same personnel in HRC. He is not a personnel officer. How was he to know as a Signal Corp Soldier that the orders were not properly published? He and his spouse received retired reserve identification cards throughout the years. They were in the system for issuance of cards and were told full benefits would begin at age 60; his electronic file indicated that he was in the Retired Reserve, which is currently reflected even now; and until age 60 his records and orders seemed to be appropriate. Now, he is told that, not only he is not eligible to retire, but also he is also too old in years to complete any time training or on active duty for retirement. As a follow on to this inconsistency, the HRC IG told him that his benefits should have started immediately upon retirement. As a Reserve Soldier, this is never the case. The provisions of the original TERA were not correctly interpreted or they were not aware of the provisions. The amended TERA (2001-2008) may have provided the entitlements to which he addressed. He was already on the retired roll by the time of the amended guidance. Again it, took some digging to find the original provisions to support this claim. The original provisions stated that at the proper age full entitlements and benefits would be granted. His electronic personnel file supports assignment to the USAG unit and further assignment to the Retired reserve. d. A review of his electronic records would reveal several inconsistencies. First, a comparison with the electronic assignment section to the actual published orders does not have published orders for assignment to USAG, Fort Meade, MD or assignment orders releasing him from this slot to the retired reserve. Second, based upon the first paragraph how was he assigned to the retired reserve role, which authorized his spouse and him, military ID cards as retired reserve Soldier? Third, what prompted coordination and implementation of the recorded transactions through the personnel system without published orders or documents? Fourth, how would he have known of his status and disposition without proper counseling? Fifth, why did he and his dependent continue to receive updated SIDPERS/DEERS support (issuance of current ID cards) until age 60? e. In support of his application, he offers his retirement orders published by HRC that moved him from the USAG, Fort Meade, MD (electronic unit assignment history) to the retired reserve roll. These same orders also provided the appropriate offices to update his personnel records for SIDPERS/DEERS status, which further authorized issuance of retired reserve ID cards until age 60. He also provides a brief statement identifying TERA’s authority and directives were published in Order Code IB85159, which is a CRS [Congressional Research Service] Issue Brief for Congress, which addressed Military Retirement: Major Legislative Issues. f. On page CRS-4 of this document it states: The Fiscal Year 1993 (FY93) National Defense Authorization Act (Sec. 4403, P.L. 102-484) granted temporary authority (which expired on September 30, 2001) for the services to offer early retirements to personnel with more than 15 but less than 20 years of service. TERA was used as a manpower tool to entice voluntary retirements during the drawdown. Even though it was used to entice voluntary retirements during the drawdown, the Soldiers did not have to come from drawdown units, hence, "voluntary." Additionally, the qualification for implementation, which included reserve Soldiers was defined in Title 10, U.S. Code (USC), section 12731. Specifically, Section 12731a entitled temporary special retirement qualification authority. It stated: (a) Retirement with At Least 15 Years of Service. - For the purposes of section 12731 of this title, the Secretary concerned may - (1) during the period described in subsection (b), determine to treat a member of the Selected Reserve of a reserve component of the armed force under the jurisdiction of that Secretary as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member - (A) as of October 1, 1991, has completed at least 15, and less than 20, years of service computed under section 12732 of this title; or (B) after that date and before the end of the period described in subsection (b), completes 15 years of service computed under that section; and (2) upon the request of the member submitted to the Secretary, transfer the member to the Retired Reserve." This qualification did not impose a limit on the status of a Reserve soldier. It appears that a reserve Soldier with 15 years or greater in good standing, could voluntarily submit a request for retirement and based on the needs of the Army. His request was approved, which initiated movement from USAG, Fort Meade slot to the retired reserve roll. g. The Department of Defense (DOD) Financial Management Regulation, Volume 12, Chapter 18, September 1996, Chapter 18 provided the guidance to access the funds for each Military Service. Therefore, the actions surrounding the request to retire and fund this retirement were all in place. Further guidance of this provision was also listed in DOD Instruction 1340.19; November 17, 1993, which provided provisions to continue earning additional service credit by being employed in an agency listed on the registry of public and community organizations approved by the DOD. The assignment manager at HRC performed this counseling over the phone but failed to request his signature of its occurrence. During this period, he was employed as an Army Civilian, in the Logistics Exercise and Training Directorate, based on Fort Lee, VA under the Training and Doctrine Command (TRADOC). He held that position for 16 years. h. The provisional limitation for involuntary release, which was primarily from units that were reorganizing or drawing, came after 2001 until 2008. The date on his retirement orders along with the DD Form 108 coincides to reflect implementation of retired reserve status with an effective date of 7 March 1997. The DD Form 108 per personnel actions implementation guidance was for the next day 8 March 1997. These recorded personnel actions confirm placement into the retired reserve. He does not have a DD Form 214 releasing him from service at this time because he was supposed to receive full retirement benefits on his 60 birthday. This occurred on 5 November 2013. After submitting his retirement packet to HRC, and after not receiving any response for 3 months, he submitted a DD Form 1559 to the HRC IG. The IG response completed the letter of denial inclusive with his response to the DD Form 1559. It was an unfavorable decision. He was informed that the orders were not valid and he should have ensured that his orders were valid when they were issued. After considerable search for additional information through external military support groups, he initiated a Congressional Inquiry. The Inquiry was sent to the same office and personnel, which provided a similar response as the HRC IG. Since his research enabled him to find additional artifacts, which identified some procedures, and instructions, which were in effect during the period in question, he emailed them to the HRC IG. The response was that too much time has passed for him to make a decision. He was referred to this Board. 3. The applicant provides: * Orders C-03-709202 (Retired Reserve) * DD Form 108, dated 22 December 2013 * ARPC Form 249-E (Chronological Statement of Retirement Points) * Copy of Identification Card * Document titled "CRS Issue Brief for Congress" * DA Form 1559 * Response from the HRC IG * Letter from HRC to his member of Congress 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 5 November 1953. Having had prior enlisted service (2 December 1971 to 24 October 1979), the applicant reenlisted in the Regular Army on 15 May 1979. The Army honorably discharged him on 24 October 1979 to accept appointment as a warrant officer of the Army. 3. He was appointed as a warrant officer of the Army and he executed an oath of office, with concurrent call to active duty, on 25 October 1979. He served in a variety of signal assignments and he was promoted to chief warrant officer two (CW2). 4. The Army honorably released from active duty on 18 September 1987 because of not being selected for promotion and transferred him to the U.S. Army Reserve (USAR) Control Group (Reinforcement). 5. On 15 August 1990, he was voluntarily transferred from the USAR Control Group (Reinforcement) to a troop program unit (TPU), the 3747th U.S. Army Reserve Forces (USARF) School, Germany. 6. On 7 December 1990, he was voluntarily transferred from his TPU, the 3747th USARF School to USAR Control Group (Reinforcement). 7. On 18 November 1992, he was again voluntarily transferred from the USAR Control Group (Reinforcement) to a TPU, the 3747th USARF School, Munich, Germany. 8. On 5 July 1993, he was voluntarily transferred from his TPU, the 3747th USARF School to USAR Control Group (Reinforcement). 9. His transfer orders from the USAR Control Group (Reinforcement) to another TPU are not available for review. However, on 7 March 1997, the USAR Personnel Center, St. Louis, published Orders C-03-709202 voluntarily transferring him from his unit, USAG Fort Meade, to the Retired Reserve effective 7 March 1997. 10. His ARPC Form 249-E, dated December 2013, shows he completed 15 years, 10 months, and 23 days of qualifying service for non-regular retirement. 11. In December 2013, he submitted an application for retired pay benefits requesting his retired pay date to begin on 5 November 2013. 12. On 11 April 2014, he submitted an IG Action Request to HRC IG. He indicates that he had made numerous requests in relation to his retired pay with no success. On 24 April 2014, the HRC IG responded. An official stated: a. This letter is in response to his request regarding his assertion that the Army improperly denied him retirement pay and benefits. HRC IG conducted a thorough review of all the documents he sent as well as his records sent from the National Archives and Records Administration. Unfortunately, none of them supports his assertion that he is eligible for retirement pay or benefits. b. Additionally, the Reserve Retirements Section Chief reviewed all the documents and concluded that he was not retired under the provisions of any temporary early retirement authority (TERA) and therefore ineligible to request retirement pay or benefits. c. Finally, his request for IG assistance is untimely. If he were actually entitled to pay and benefits under TERA, his eligibility for those entitlements would have been effective immediately after he retired in 1997. In the absence of any supporting documents that indicate he was retired under the provisions of TERA, the IG feels completed to close his case without action. 13. On 21 October 2014, an HRC official wrote to the applicant's Member of Congress and stated this letter is in reply to an inquiry received on behalf of the applicant regarding retirement pay under the TERA. The applicant's records show he was assigned to the USAR Control Group as an Individual Mobilization Augmentation Soldier. It was also found that he was not a part of a drawdown and he voluntarily requested to be placed in the Retired Reserves. Therefore, he is not entitled to receive the Notification of Eligibility for Retirement (15-Year Letter). The TERA granted temporary authority to services for early retirement of personnel that have more than 15 but less than 20 years of service. To be eligible a service member must be a member of the Selective Reserves (unit member) where the unit was a part of the drawdown for the reason of deactivating, reorganizing, or relocating. 14. The Board requested and HRC issued an advisory opinion on 2 March 2016 in the processing of this case. An advisory official recommended denial of the applicant's request and stated: a. This is in response to an advisory opinion request in reference to the applicant's request to be transferred to the Retired Reserves and be issued a 15-Year Letter making him eligible for retired pay. b. The applicant was transferred to the Retired Reserves on 7 March 1997. The Reserve Component Retirements (RCR) Branch has reviewed his records and the documents he submitted to the Board. None of the documents supports the fact that he is eligible for retired pay and benefits at age 60. c. His military records show he was assigned to the USAR Control Group as an Individual Mobilization Augmentation Soldier. In order to receive a 15-Year Letter and retired pay at age 60, a Soldier had to be a member of a unit that was being downsized, reorganizing, relocating or deactivating at the time the Soldier attained 15 years of qualifying service. d. It is the opinion of the RCR Branch that the applicant is not eligible to receive a 15-Year Letter. Therefore, he is not eligible to receive retired pay and benefits at age 60. The applicant volunteered to be placed in the Retired Reserves. He was not a member of a unit when he attained 15 years of qualifying service. 15. The applicant responded to the advisory opinion on12 April 2016. He stated: a. In response to paragraph 3 of HRC opinion, as stated previously, his decision to retire was not made in haste or without consultation with his assignment officer. Together, they discussed his alternatives and what was appropriate at that time for full retirement eligibility. While in conversation with him, he researched the directives and pointed out to him that it was extended to include all reserve Soldiers. At that time, he pointed out to him that he was assigned as an Individual Mobilization Augmentation. He did some further research after putting him on hold. He came back and said that it was all Reserve Soldiers who met the 15-year requirement. At the time, he told him to go ahead and retire him. b. As submitted with his application to this Board, 10 USC 12731- Section 127311 (a) (1) (b) Temporary special retirement qualification authority states: "..treat a member of the Selected Reserve of a reserve component of the armed force under the jurisdiction of that Secretary as having met the service requirements of sub-section (a) of that section." At the time he retired in 1997, the TERA benefit was extended to Selected Reserve Soldiers without any other discriminators. It further stated: provide the member with the notification required by subsection (d) of that section if the member - (A) as of October 1, 1991, has completed at least 15 and less than 20, years of service computed under section 12732 of this title." c. His final response to the HRC opinion is in regards to their stated requirement of a membership in "a unit that was being downsized, reorganizing, relocating or deactivating at the time the Soldier attained 15 years of qualifying service." 10 USC 12731a section :h) (2) states that, "...upon the request of the member submitted to the Secretary, transfer the member to the Retired Reserve." He had the authority and the right to retire voluntarily at the time with full benefits. There was no mention in this code of a requirement for membership in a nit that was being downsized, recognizing, relocating, or deactivating. REFERENCES: 1. Title 10, USC, section 12731a (Temporary special retirement qualification authority) states: a. Retirement With At Least 15 Years of Service.—For the purposes of section 12731 of this title, the Secretary concerned may (1) during the period described in subsection (b), determine to treat a member of the Selected Reserve of a reserve component of the armed force under the jurisdiction of that Secretary as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member (A) as of October 1, 1991, has completed at least 15, and less than 20, years of service computed under section 12732 of this title; or (B) after that date and before the end of the period described in subsection (b), completes 15 years of service computed under that section; and (2) upon the request of the member submitted to the Secretary, transfer the member to the Retired Reserve. b. Period of Authority. The period referred to in subsection (a)(1) is the period beginning on October 23, 1992, and ending on December 31, 2001. c. Applicability Subject to Needs of the Service: (1) The Secretary concerned may limit the applicability of subsection (a) to any category of personnel defined by the Secretary in order to meet a need of the armed force under the jurisdiction of the Secretary to reduce the number of members in certain grades, the number of members who have completed a certain number of years of service, or the number of members who possess certain military skills or are serving in designated competitive categories. (2) A limitation under paragraph (1) shall be consistent with the purpose set forth in section 4414(a) of the National Defense Authorization Act for Fiscal Year 1993 (Public Law 102–484; 106 Stat. 2713). (3) Notwithstanding the provisions of section 4415(2) of the Defense Conversion, Reinvestment, and Transition Assistance Act of 1992 (division D of Public Law 102–484; 106 Stat. 2714), the Secretary concerned may, consistent with the other provisions of this section, provide the notification required by section 12731(d) of this title to a member who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability. Such notification may not be made if the disability is the result of the member’s intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention established by the Secretary concerned or was incurred during a period of unauthorized absence 2. TERA was offered to any Selected Reserve member who lost his or her paid drill position due to inactivation, relocation, or reorganization of his or her unit during the drawdown period. It did not include members discharged or transferred because they no longer met qualifications for membership. DISCUSSION: 1. The applicant contends he should have received a 15-letter to receive non-regular service retired pay at age 60. 2. The temporary retirement authority was meant to be a drawdown tool to provide a reduced retirement to Reservists who lost their paid positions due to unit inactivation, relocation, or reorganization and was not meant for members who were already scheduled to leave the Selected Reserve for other reasons. 3. The applicant's last order, dated 7 March 1997, shows he was voluntarily transferred from USAG Fort Meade to the Retired Reserve on 7 March 1997. He was not reassigned to the Retired Reserve due to the Fort Meade USAG's unit inactivation, relocation, or reorganization. 4. In order to receive a 15-Year Letter and retired pay at age 60, a Soldier had to be a member of a unit that was being downsized, reorganizing, relocating or deactivating at the time the Soldier attained 15 years of qualifying service. He voluntarily requested to transfer to the Retired Reserve. He does not meet the eligibility criteria for the issuance of a 15-year letter or placement on the retired list at age 60. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011349 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011349 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2