BOARD DATE: 7 February 2017 DOCKET NUMBER: AR20150015658 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: 7 February 2017 DOCKET NUMBER: AR20150015658 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 revoking Orders D-04-217696, issued by the U.S. Army Reserve Personnel Command (now redesignated U.S. Army Human Resources Command) on 23 April 2002, and publishing new orders showing he was transferred to the Retired Reserve effective 23 April 2002. _____________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: 7 February 2017 DOCKET NUMBER: AR20150015658 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, that his U.S. Army Reserve (USAR) discharge orders be revoked and that he be transferred to the Retired Reserve. 2. The applicant states, in effect, when he tried to obtain a retiree identification card, he was told he was a former member of the U.S. Army, not a U.S. Army retiree. He asserts he retired from the U.S. Army Reserve after serving 21 years. He believes a clerical error was made and provides supporting documentation. 3. The applicant provides: * memorandum, dated 9 January 2002, Subject: Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) * Orders Number 02-107-00022, dated 17 April 2002 * Honorable Discharge Certificate, dated 23 April 2002 * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 14 June 1984 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 in September 1963 and will reach 60 years of age in September 2023. 3. The applicant enlisted in the Regular Army on 15 June 1981. 4. He was released from active duty and transferred to the USAR on 14 June 1984. His DD Form 214 shows he served 3 years of net active creditable service. 5. On 9 January 2002, he was issued a 20-Year Letter, essentially notifying him he could apply for military retired pay at age 60. The authority was Title 10, U.S. Code, section 1223. In pertinent part, the letter states the applicant is eligible for retired pay on application at age 60. His eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of creditable service performed unless it resulted in fraud or misrepresentation on the part of the applicant. 6. His official military personnel file (OMPF) contains the following: a. Orders Number 02-107-00022, dated 17 April 2002, issued by Headquarters, 95th Division (Institutional Training), releasing the applicant from his unit assignment and transferring him to the USAR Control Group (Reinforcement) effective 17 April 2002. b. Orders Number D-04-217696, dated 23 April 2002, issued by the U.S. Army Reserve Personnel Command (now redesignated as U.S. Army Human Resources Command), honorably discharging the applicant from the USAR. 7. A DA Form 5016 (Chronological Statement of Retirement Points), generated by HRC, shows he has 19 years, 11 months, and 29 days of creditable service for nonregular retired pay. 8. On 9 September 2016, HRC provided an advisory opinion. a. Based on a review of the applicant's petition, it was determined the applicant was one point short of 20 qualifying years of service. He was transferred to the USAR Control Group on 17 April 2002, and discharged on 23 April 2002, after fulfilling his service obligation. b. Due to no fault on his part, the applicant was issued a 20-Year Letter. Since the letter cannot be retracted, the official recommends granting the applicant's request. 9. On 27 September 2016, the Case Management Division, Army Review Boards Agency, provided the applicant a copy of the advisory opinion for review and comment. He did not submit a response. REFERENCES: 1. Army Regulation (AR) 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard and USAR enlisted Soldiers for a variety of reasons. It states an enlisted Soldier will be discharged by reason of removal from the list when his removal is required by Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers) unless he is eligible for a transfer to an active status or is eligible for and applies for a transfer to the Retired Reserve. 2. AR 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers. a. 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. b. Chapter 6 provides for the transfer to and from the Retired Reserve. Paragraph 6-1 (Eligibility) states that assignment to the Retired Reserve is authorized and that eligible Soldiers must request a transfer to the Retired reserve if they met the criteria for such a transfer. c. Chapter 7 provides for the removal from active status and states that Soldiers removed from active status will be discharged or transferred to the Retired Reserve. Transfer to the Retired Reserve is authorized when requested by Soldiers who are eligible. DISCUSSION: 1. The applicant was issued a 20-Year Letter, despite being 1 point short of 20 qualifying years of service for nonregular retired pay. When a 20-Year Letter has been issued, it cannot be retracted by law unless the issuance of the letter resulted from fraud or misrepresentation on the part of the applicant. There appears to be no misrepresentation or fraud on the part of the applicant and HRC recommends granting the applicant's request. 2. The Board may recommend that his USAR discharge order be revoked and a new order published transferring him to the Retired Reserve effective 23 April 2002. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015658 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015658 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2