IN THE CASE OF: BOARD DATE: 25 August 2015 DOCKET NUMBER: AR20150012850 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: 25 August 2015 DOCKET NUMBER: AR20150012850 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: 25 August 2015 DOCKET NUMBER: AR20150012850 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, issuance of a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) for his service in the California Army National Guard (CAARNG) and then payment of retired pay. 2. The applicant states, in effect: * he was honorably discharged from the CAARNG in 1988 after 20 years of service; his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) states he served a total of 20 years for pay * he was told he could not apply for retirement benefits until he reached 60 years of age; when he applied, he was told he was not qualified * being told he was not qualified was both confusing and disturbing * he was asked to submit any additional information that would substantiate his claim; he did have a copy of his NGB Form 22, but was not able to locate other paperwork * he has been dealing with this situation for 12 years with no resolution and he is discouraged * he feels he put in his time and served his country, and he should not be penalized based on someone else's mistake, or because paperwork was misplaced * he is receiving other benefits as a retiree, he just is not receiving retired pay; he asserts he truly needs and deserves retired pay 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 7 April 1970 * NGB Form 22 for the period ending 26 February 1988 * Orders Number D-09-075737, dated 30 September 1988 * memorandum, dated 30 June 1989, Subject: Retirement Points for [applicant] * NGB Form 23 (Army National Guard - Retirement Credit Record), for retirement years February 1977 through 31 March 1987, issued by the CAARNG * CAARNG Form Personnel Records Separation Document, dated 8 January 2004 * NGB Form 23B (Army National Guard Retirement Points History Statement), dated 15 October 2014 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 16 August 1943. He turned 60 years of age on 16 August 2003. 3. Having had prior enlisted service in the Army of the United States (AUS) and the U.S. Army Reserve (USAR), the applicant enlisted in the CAARNG on 27 February 1977. He served continuously and rose to the rank/grade of staff sergeant/E-6. 4. On 26 February 1988, he was honorably discharged from the CAARNG due to expiration of service obligation. His NGB Form 22 shows: a. He completed 11 years of net service with the CAARNG, and had 7 years of prior Reserve Component service, as well as 2 years of active Federal service. Item 10 (Record of Service), subparagraph d (Total Service for Pay) reads 20 years. b. Item 9 (Command to which Transferred) states, USAR Control Group (Retired Reserve). c. Item 23 (Authority and Reason) shows Office of the Adjutant General (OTAG) Letter Order (LO) Number 03A-2, dated 15 March 1988, CA Military and Veterans Code, section 260 (Causes for Discharge), and paragraph 8-26x (Expiration of Service Obligation), National Guard Regulation (NGR) 600-200 (Personnel General – Enlisted Personnel Management), expiration of service obligation. 5. OTAG LO Number 03A-2, dated 15 March 1988, issued by the CAARNG, stated, effective 26 February 1988, the applicant was honorably discharged from the CAARNG and assigned to the USAR Control Group (Retired). 6. The applicant provides: a. DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing his service in the AUS from 8 April 1968 to 7 April 1970. b. Orders Number D-09-075737, dated 30 September 1988, issued by the USAR Personnel Center (ARPERCEN), showing the applicant was discharged from the U.S. Army Ready Reserve effective 30 September 1988. c. NGB Form 23B, dated 15 October 2014, listing the applicant's service in the AUS, USAR, and the CAARNG spanning the period 8 April 1968 through 26 February 1988. It further indicates he accumulated 1,768 points for retirement purposes, which equates to 15 years of creditable service for retired pay. 7. In an advisory opinion, dated 29 June 2016, an official from the NGB recommended disapproval of the applicant's request. a. Upon reviewing the applicant's records, the official determined he was not eligible for non-regular retirement because he had not earned 20 qualifying years of service. (1) The applicant's NGB Form 23 indicated he had some "bad years," meaning he did not earn the minimum 50 points required by law for each of those years. (2) Assuming the applicant met the requirement to have earned 50 retirement points for every year of military service, his total service (counting from his entry on active duty date of 8 April 1968 through his discharge from the CAARNG) amounts to only 19 years, 10 months, and 18 days [sic, 19 days]. (3) His NGB Form 23 reflects that he did not receive a 20-Year Letter, which is issued to Soldiers who have achieved 20 qualifying years of service for non-regular retirement. (4) His NGB Form 22 erroneously shows the command to which he was assigned was the USAR Control Group (Retired Reserve). b. NGR 680-2 (Automated Retirement Points Accounting Management), paragraph 2-4 (Minimum Retirement Points Required for a Year of Satisfactory Service), dated 19 August 2011, states, "Soldiers must earn a minimum of 50 retirement points, regardless of source, in each full anniversary year to have that year creditable towards verification of the total years of qualifying service for non-regular retired pay." Army Regulation (AR) 135-180 (Retirement for Non-Regular Service) also includes this requirement. c. This opinion was coordinated with the ARNG Retirement Services Division, and the CAARNG concurs with the recommendation. 8. The Case Management Division, Army Review Boards Agency provided the applicant a copy of the advisory opinion. He provided his response on 25 July 2016, essentially stating: * he served in the Army from 1968 to 1970, and the ARNG from 1971 to 1988 [sic, he served in the CAARNG from 1977 to 1988] * when he received his NGB Form 22, it stated he had completed 20 years of service, which he thought was all he needed * no one informed him of any discrepancies in his records, nor did they tell him he needed a 20-Year Letter * regarding the advisory from NGB, he has no knowledge of having any "bad years" and does not understand * the advisory also stated his NGB Form 22 had erroneous information * it seems he is being held liable for something he did not do, and of which he had no knowledge * as far as he knew, he served his time, was honorably discharged, and was waiting for his eligibility to draw retired pay in 2003, at age 60 * he has been on this quest to receive retired pay for 13 years and he hopes he has finally reached the right people to help * he feels there has been a communication gap somewhere down the line, and he honestly believes what occurred is not his fault * he served his country proudly, and would do it again in a heartbeat * he is now 73 years old and is only asking for compensation he feels he has earned REFERENCES: 1. Title 10, U.S. Code, section 12731 (Age and Service Requirements), states, a person is entitled, upon application, to retired pay if the person has attained the eligibility age, and has performed at least 20 years of service, as computed in section 12732 of Title 10. The service member will be notified in writing within 1 year after completion of the required service. 2. Title 10, U.S. Code, section 12732 (Entitlement to Retired Pay: Computation of Years of Service), states the person must be credited with at least 50 points on the following basis: * one point for each day of active duty * one point for each attendance at a drill or equivalent instruction * points at the rate of 15 for each year of membership 3. Army Regulation 135-180 (Retirement for Non-regular Service) implements statutory authorities governing the granting of retired pay to Soldiers and former Reserve Component Soldiers. a. 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 last 8 years of his qualifying service as a Reserve component Soldier. b. Qualifying service is service performed in an active status in a Reserve component or in active federal service. After 30 June 1949, a Reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. 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. c. The 20-Year Letter will be issued by the State Adjutant General (Military Personnel Management Office) for all ARNG Soldiers serving in an active status in the State, where the eligible Soldier was assigned at the time they become eligible. The 20-Year Letter should be issued prior to discharge or transfer to the Retired Reserve. d. A 15-Year Letter computed under Title 10, U.S. Code, section 12732 can be issued if the Soldier is separated because the Soldier has been determined to be unfit for continued Selected Reserve service. DISCUSSION: 1. The applicant requests, in effect, issuance of a 20-Year Letter and then retired pay because he served 20 years of service for pay. Based upon the evidence of record, it does not appear he met the requirements established by law to have completed 20 qualifying years of service for non-regular retired pay. a. His NGB Form 23B, dated 15 October 2014, includes his service in the AUS, USAR, and the CAARNG. It shows he accumulated 1,768 points for retirement purposes, which equated to 15, not 20, years of creditable qualifying service for non-regular retired pay. As he was discharged based upon his expiration of his term of service and not because of physical unfitness, he is not eligible by law for a 15-Year Letter. b. The NGB official opined that even if the applicant had accumulated sufficient points for every year (50 points) from his entry in the AUS until his discharge from the CAARNG, he would have required 2 additional months of service to complete 20 years. Thus it appears his NGB Form 22 incorrectly shows 20 years of service for pay. However, this administrative error does not impact his ability to receive retired pay. 2. The applicant asserts he completed his service (20 years of service for pay) and is now being held responsible for the mistakes of others. However, eligibility for a non-regular retirement is set forth in law and, as such, a Soldier either has or has not fulfilled the requirements. In the applicant's case, by accumulating only 15 qualifying years of military service, he falls short of 20 creditable qualifying years mandated by law. The 20 years of service for pay shown on his NGB Form 22 does not make him eligible for issuance of a 20-Year Letter and subsequent entitlement to retired pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012850 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012850 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2