BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160002386 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ___x_____ ___x_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160002386 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a.  revoking Headquarters, 81st Regional Support Command, Orders  11-217-00003, dated 5 August 2011 discharging him from the U.S. Army Reserve; b.  issuing him orders transferring him to the U.S. Army Reserve Retired Reserve effective 30 April 2010; and c.  issuing him a DD Form 363A (Certificate of Retirement). 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to reimbursing him any pay for his inactive duty training on 17 and 18 April 2010 in the absence of evidence showing this pay was, in fact, subject to recoupment. ______________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: 10 October 2017 DOCKET NUMBER: AR20160002386 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.  correction of Headquarters, 81st Regional Support Command, Orders 11-174-00044, dated 23 June 2011, to show his effective date of retirement as 30 April 2010 instead of 10 April 2010 and b.  reimbursement for recoupment of pay for drill (inactive duty training) performed on 17 and 18 April 2010. 2. The applicant states: a.  His discharge orders should be amended to show he was transferred to the Retired Reserve on the last day of the month in which he reached his 60th birthday so he will qualify for cost of living increases and entitlement to pay for drill performed 17 and 18 April 2010. b.  He performed drill on 17 and 18 April 2010. At the end of his second day, he was told he could not attend training because he had reached his 60th birthday, despite being authorized to drill until the end of his birth month. c.  On 20 July 2010, he was counseled and told he would be transferred to the Retired Reserve as of 9 April 2010 and he was directed to complete his request for that date. Approximately 1 year later in June 2011, orders transferring him to the Retired Reserve were published with an effective date of 10 April 2010 and were subsequently revoked on 3 August 2011. d.  Orders discharging him were published 5 August 2011 with an effective date of 10 April 2010. He had to repay the Defense Finance and Accounting Service (DFAS) the amount he was paid for drill performed in April 2010. e.  He thought what the unit did was correct and he was unaware of the significance until he applied for retired pay. 3. The applicant provides: * two DD Form 214 (Certificate of Release or Discharge from Active Duty) * New York Adjutant General Division of Military and Naval Affairs Orders 64-39, dated 3 April 1984 * DFAS Form 702 (DFAS Military Leave Earnings Statement) * two DA Forms 4651 (Request for Reserve Component Assignment or Attachment) * Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points) * two DA Forms 4856 (Developmental Counseling Form) * 331st Minimal Care Detachment memorandum, dated 20 July 2010, subject: Request for Assignment to Retired Reserve * Headquarters, 81st Regional Support Command, Orders 11-174-00044, dated 23 June 2011 * Headquarters, 81st Regional Support Command, Orders 11-215-00021, dated 3 August 2011 * DD Form 2656 (Data for Payment of Retired Personnel) * DD Form 108 (Application for Retired Pay Benefits) * National Guard Bureau Form 23B (Army National Guard Retirement Points History Statement) * U.S. Army Human Resources Command Form 249-E (Chronological Statement of Retirement Points) * DA Form 5016 (Chronological Statement of Retirement Points) 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 10 April 1950. 3. Having prior enlisted service in the Army National Guard, he enlisted in the U.S. Army Reserve under the Delayed Entry/Enlistment Program on 28 April 1983. On 4 August 1983, he was honorably discharged from the U.S. Army Reserve Delayed Entry/Enlistment Program for immediate enlistment in the Regular Army. 4. On 5 August 1983, he enlisted in the Regular Army for a period of 3 years. 5. On 25 February 1992, he reenlisted for a period of 6 years. 6. On 5 March 1992, he submitted a request for transfer to a troop program unit (TPU) of the Selected Reserve. 7. U.S. Army Reserve Personnel Center Orders C-04-213162, dated 7 April 1992, assigned him to Headquarters and Headquarters Company, 841st Engineer Battalion, effective 25 February 1992. 8. On 8 February 1998, he extended his enlistment for a period of 6 years. 9. On 16 May 1998, he reenlisted for a period of 6 years while assigned to a TPU. 10. He provided a copy of his DFAS Form 702 for the period covered by the check dated 30 April 2010 that shows he performed four inactive duty training periods (4-hour increments) on 17 and 18 April 2010. 11. His DA Form 4651, dated 20 July 2010, shows he requested (retroactive) transfer to the Retired Reserve effective 9 April 2010 due to reaching 60 years of age. 12. His records contain a DA Form 4856 showing he was counseled on 20 July 2010 for the purpose of retiring from the U.S. Army Reserve. He had completed 20 years of qualifying military service and he had received his 20-year retirement eligibility letter. 13. On 20 July 2010, his request for retirement was approved. 14. His records contain a DA Form 4856 showing he was counseled on 22 July 2010 for the purpose of separating from a U.S. Army Reserve TPU and the benefits he would lose upon separation. He had completed over 20 years of qualifying military service and he had received his 20-year retirement eligibility letter. 15. Headquarters, 81st Regional Support Command, Orders 11-174-00044, dated 23 June 2011, show he was assigned to the 331st Medical Corps Detachment (Minimal Care), Miami, FL. The orders reassigned him to the Retired Reserve effective 10 April 2010 by reason of maximum age. 16. Headquarters, 81st Regional Support Command, Orders 11-215-00021, dated 3 August 2011, revoked Orders 11-0174-00044, dated 23 June 2011, same headquarters. 17. His separation packet contains email from Army Reserve G-1 Enlisted Management Branch, Personnel Policy Division, U.S. Army Reserve Command, Fort Bragg, NC, dated 2 August 2011, which shows a human resources specialist verified his last payday was 18 April 2010 with DFAS. 18. Headquarters, 81st Regional Support Command, Orders 11-217-00003, dated 5 August 2011, honorably discharged him from the U.S. Army Reserve effective 10 April 2010. 19. He provided copies of his: a.  DD Form 2656, dated 30 June 2015, wherein he indicated he was not married and he had no dependent children. His selection also bears the signature of a witness; b.  DD Form 108, dated 1 September 2015, wherein he indicated the desired date to begin his retired pay as 10 April 2010; c.  National Guard Bureau Form 23B, dated 9 November 2015, that shows his total points for retired pay as 202 points for the period 28 July 1981 through 28 July 1982; d.  U.S. Army Human Resources Command Form 249-E, dated 3 December 2015, that shows he had 18 qualifying years for retirement and a total of 1,506 creditable points for the period 28 July 1985 through 27 July 2010. He earned a total of 32 inactive duty points, 15 membership points, and 16 active duty points for a total of 63 creditable points during the period 28 July 2009 through 27 July 2010; and e.  DA Form 5016, dated 4 April 2017, that shows he has 22 years, 5 months, and 6 days of qualifying service for retirement and a total of 2,785 creditable points. 20. His records are void of a 20-year letter notifying him of his eligibility for retired pay at age 60. 22. There is no evidence DFAS recouped the payment he received for his inactive duty training on 17 and 18 April 2010. 23. His records are void of any evidence he was issued a DD Form 363A (Certificate of Retirement). REFERENCES: Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer U.S. Army Reserve Soldiers. a.  Chapter 6 (Transfer to and from the Retired Reserve) states, in part: (1)  Eligible Soldiers may request transfer to the Retired Reserve when they have completed 20 years of active or inactive service. (2)  Orders transferring Soldiers to the Retired Reserve will cite paragraph 6-2 and state the reason for transfer. When retirement and mandatory removal are concurrent, the orders will also show the reason for mandatory removal. Soldiers transferred to the Retired Reserve will be furnished a DA Form 977 (Certificate of Transfer to Retired Reserve). A DA Form 977 is not required for Soldiers transferred to the Retired Reserve in the same grade as shown on their DD Form 363A (Certificate of Retirement). (3)  Soldiers who have completed 20 years of qualifying service for retired pay will not be removed from a TPU unless they have received the letter of notification to receive retired pay at age 60. Removal will be completed within 30 days after the letter of notification is issued. Should issue of the letter of notification be delayed more than 60 days, authority for continued retention must be obtained from the appropriate area commander. Removal from a TPU based on years of service in this instance, does not apply to Individual Ready Reserve or Individual Mobilization Augmentee members. b.  Paragraph 7-3 states Soldiers not sooner removed for another reason will be removed when they reach maximum age. Removal date will be the last day of the month in which they reach age 60 for Soldiers having 20 or more years of qualifying Federal service, except for certain restrictions outlined in Army Regulation 135-156 (Personnel Management for General Officers). DISCUSSION: 1. The applicant reached age 60 on 10 April 2010. 2. The evidence of record shows he performed inactive duty training on 17 and 18 April 2010. 3. Records show he was counseled on 20 July 2010 for the purpose of retirement. This form states he had completed 20 qualifying years and received his 20-year letter. However, his records are void of a 20-year letter notifying him of his eligibility for retired pay at age 60. 4. Orders transferring him to the Retired Reserve were not issued until 23 June 2011 with an effective date of 10 April 2010, the date of his 60th birthday, thereby invalidating the inactive duty training he performed on 17 and 18 April 2010. These orders were subsequently revoked on 3 August 2011 and orders honorably discharging him from the U.S. Army Reserve were published on 5 August 2011 with an effective date of 10 April 2010. 5. The U.S. Army Reserve erred by not properly transferring him to the Retired Reserve effective the last day of the month in which he reached age 60 and crediting him with the inactive duty training he performed on 17 and 18 April 2010. 6. Although he contends he had to repay DFAS the amount he was paid for his inactive duty training on 17 and 18 April 2010, his available records are void of DFAS debt or collection documentation. 7. His records are void of any evidence he was issued a DD Form 363A (Certificate of Retirement). //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002386 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002386 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2