BOARD1 DATE: 17 August 2017 DOCKET NUMBER: AR20150018816 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: 17 August 2017 DOCKET NUMBER: AR20150018816 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 01-016-018 issued by Headquarters, 88th Regional Support Command, showing she was discharged * issuing new orders showing she was transferred to the Retired Reserve effective 9 February 2001 _____________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: 17 August 2017 DOCKET NUMBER: AR20150018816 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 her record to show she was transferred to the Retired Reserve instead of being honorably discharged. 2. The applicant states: a. She completed 20 "good" and verified years of service between the Ohio Army National Guard (OHARNG) and the U.S. Army Reserve (USAR). She was honorably discharged on 16 January 2001 and later that year, she received her Twenty-Year Letter. b. While talking to fellow USAR retirees, she discovered that she did not receive the proper briefings about retirement options. She was never informed of the option to go into the Retired Reserve where she would receive the proper identification card and be eligible for cost of living adjustments for retirees. c. She would like to receive the benefits that she earned through her service to her country. In addition, she would like the corrective action backdated to 9 February 2001. 3. The applicant provides: * Headquarters, 88th Regional Support Command Orders 01-016-018, dated 16 January 2001 * Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter), dated 22 August 2001 * AHRC Form 249-E (Chronological Statement of Retirement Points), dated 11 September 2015 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's complete military personnel records are not available for review by the Board. There is sufficient information contained in the interactive Personnel Electronic Records Management System and other official sources to fully and fairly review this case. 3. The applicant was born on 4 January 1963. She enlisted in the OHARNG on 29 January 1981. 4. A review of her AHRC Form 249-E shows that she had no break in service while in the OHARNG. This form shows between 29 January 1987 and 28 January 1988 she was discharged from the OHARNG and then enlisted in the USAR. 5. Further review of the applicant's AHRC Form 249-E shows she had no break in service while in the USAR. On 16 January 2001, Headquarters, 88th Regional Support Command published Orders 01-016-018, honorably discharging her from the USAR effective 9 February 2001. 6. On 22 August 2001, the applicant was issued a Twenty-Year Letter notifying her of her eligibility to receive retired pay at age 60. 7. Comments in the "Remarks" section of SMS show that on 31 August 2015, the applicant contacted the U.S. Army Human Resources Command concerning the procedures to obtain a Retired Reserve identification card. She was informed she needed to contact her (USAR) unit and request to be placed in the Retired Reserve. REFERENCES: 1. Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, states that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and, (3) served the last 8-years of his or her qualifying service as a Reserve Component (RC) Soldier. The requirement to serve the last 8 years in the RC has since been amended to the last 6 years, and on 26 April 2005, this requirement was reduced to zero (0) years. 2. Army Regulation 135-180 also specifies, in part, that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a Twenty-Year Letter within 1 year after he/she completes the service. 3. Army Regulation 140-10 (Assignments, Attachments, Details and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers. Chapter 5 of the regulation in effect at the time stated members of the Army Reserve will, upon request, be assigned to the USAR Control Group (Retired) when they have completed a total of 20 years of service, active or inactive, in the Armed Forces. 4. Army Regulation 600-8-7 (Retirement Service Program), dated 3 July 2000, prescribed the policies for retirement services and Survivor Benefit Plan (SBP) functions of the military personnel management system. This regulation was applicable to the Active Army and the USAR. It applied to the installation Retirement Services Offices and the SBP Counselors. The Retirement Services Program is a set of programs, services, and information designed to assist Soldiers and families in the transition to retirement and keep them up-to-date on their rights, benefits, and privileges after retirement. At a minimum, preretirement services will include conducting the preretirement and SBP briefings. 5. Army Regulation 600-8-7, dated 28 April 2015, provides in chapter 9 an overview of policies applicable to the USAR for nonregular retirement. a. Paragraph 9-10 (Eligibility) states voluntary requests for assignment of eligible Soldiers for transfer to the Retired Reserve must be in writing and in accordance with AR 140–10, paragraph 6–1. However, Soldiers requesting reassignment to the Retired Reserve for voluntary reasons may have their request disapproved if they are subject to stop loss, or flagged for adverse action, and so forth. Involuntary reassignment to the Retired Reserve only pertains to reserve enlisted members of the Army who are in an active status, reached the maximum years of service or age, and meet specific criteria RC Soldiers are eligible for transfer to the Retired Reserve if they are in receipt of a Fifteen or Twenty–Year Letter. b. Paragraph 9-11 (Involuntary nonregular retirement) states Soldiers who must be removed from an active Reserve status for any reason and who qualify for a nonregular retirement under the provisions of Title 10, U.S. Code, section 12731(b) will not be separated or discharged without being properly counseled, in writing, regarding the impact of separation versus reassignment to the Retired Reserve. Soldiers requesting discharge or separation must also receive counseling in writing regarding the impact on retirement benefits and retired pay. c. Paragraph 9-12 (Discharge versus Retired Reserve) states Soldiers electing discharge vice transfer to the Retired Reserve must be aware that a discharge will have an impact on retired pay. Regardless of the Soldier's retired pay plan, Soldiers who elect discharge before age 60 will have their High–3 average or final pay computed based on the rates in effect on date of discharge. However, Soldiers electing transfer to the Retired Reserve will continue to receive credit for longevity and the Defense Finance and Accounting Service will compute retired pay based on the rates in effect at retirement. 6. Department of Defense (DOD) Financial Management Regulation, volume 7A, chapter 2, section 0202 (Repayment and Non-repayment Conditions), provides that, as a general rule, repayment action will not be pursued in situations in which the member's inability to fulfill specified service conditions related to a pay or benefit is due to circumstances determined reasonably beyond the member's control. In addition, the Secretary of the Military Department concerned has the discretion to, at some point in the process, render a case-by-case determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, a pay or benefit is appropriate based on one or more of the following: * contrary to a personnel policy or management objective * against equity and good conscience * contrary to the best interest of the United States DISCUSSION: 1. The applicant was qualified for transfer to the Retired Reserve upon completion of 20 qualifying years of service for non-regular retirement. 2. There is no evidence in the available records showing she was counseled on and understood the financial disadvantages of being discharged instead of transferring to the Retired Reserve. In 2001, there was a regulatory requirement for USAR Soldiers who were retirement eligible to receive retirement and SBP briefings. Per the applicant's statement, it appears she did not receive the required briefings or understand the financial consequences of her discharge. Today's standard for retirement and SBP briefings requires each Soldier to acknowledge in writing that they were counseled and understand the effect of their decisions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018816 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018816 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2