IN THE CASE OF: BOARD DATE: 12 April 2016 DOCKET NUMBER: AR20160003824 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 IN THE CASE OF: BOARD DATE: 12 April 2016 DOCKET NUMBER: AR20160003824 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: * redistributing 14 of the applicant's excess retirement points to the year 19810806-19820805 to provide him with a full qualifying year of service for Retirement Year Ending 5 August 1982 * issuing him a 20-year letter, if appropriate, showing he is entitled to Reserve retired pay at age 60 as a result of the above correction * placing him on the retired list effective his 60th birthday (May 2013) with entitlement to back retired pay * providing him the option to enroll or decline enrollment in the Reserve Component Survivor Benefit Plan (RCSBP) _____________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: 12 April 2016 DOCKET NUMBER: AR20160003824 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 his records to show he qualified for non-regular retirement. 2. The applicant states: * he completed 19 years, 11 months, and 8 days of qualifying service; he is only a few days short of 20 qualifying years * he previously completed 5 years of prior service in the U.S. Air Force (USAF), Texas Air National Guard, and U.S. Navy (USN) * his prior service was 5 years, 11 months, and 8 days; he did not complete his 6-year obligation * he would have stayed in the U.S. Army Reserve (USAR) an extra year if he had been receiving his AHRC Form 249 (Chronological Statement of Retirement Points) * he submitted requests to correct his points multiple time to no avail and his points were not corrected until after his 60th birthday and that is when he found out he had a shortfall * he followed the regulations but that still did not get him to 20 qualifying years; he has 46 retirement points in Retirement Year Eligibility (RYE) 1982 that did not qualify for a good year * if that year is credited it would make up for the 22-24 day shortfall; his 6-week of Reserve Officer Training Corps summer camp was not counted * he appealed to the Navy Board of Correction to correct his points but they recommended he appeals to the Army Board of Correction * he served honorably for 20 qualifying years and he feels he earned his retirement * he is enclosing transmittal letters he sent his troop program units to show his attempts to correct his points * he has shown his devotion to duty throughout his service in multiple components and involvement in the military one way or another * he believes he deserved award of 24 retirement points to qualify for non-regular retirement 3. The applicant provides: * AHRC Form 249, dated 5 April 2012, 6 June 2013, and 30 July 2015 * Congressional letters * Email exchange with the U.S. Army Human Resources Command (HRC) * USAF DD Form 214 (Report of Separation from Active Duty) * National Guard Bureau Form 22 (Report of Separation and Record of Service) (Air Force) * Record of Naval Service * Letter from the Board of Correction of Naval Records * DA Form 200 (Transmittal Record) * Request for Correction of Chronological Statement of Retirement Points CONSIDERATION OF EVIDENCE: 1. The applicant's records show he was born on 11 May 1953. He turned 60 years of age in May 2013. 2. Having had prior enlisted service in the USAF, Texas Air National Guard, and USN from 24 May 1973 to 5 August 1980, he was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 6 August 1980. He completed the Tactical Intelligence Officer Basic Course. 3. He served in a variety of stateside or overseas assignments, including units throughout Texas, and he was advanced to captain in the USAR in August 1987. He was twice considered for promotion to the next higher grade but he was not selected. 4. On 5 October 1995, Headquarters, U.S. Army Reserve Command published orders transferring him to the Retired Reserve effective 3 September 1995. His most recent/updated DA Form 5016 (Chronological Statement of Retirement Points) (formerly known as ARPC or AHRC Form 249) shows he completed 19 years, 11 months and 8 days of qualifying service for non-regular retirement. A breakdown of his retirement points is as follows: FROM TO Component Points QUAL YEAR Prior Service 19800806 19810805 ARNG 207 01/00/00 19810806 19820805 USAR 36 00/00/00 19820806 19830805 USAR 79 01/00/00 19830806 19840805 USAR 94 01/00/00 19840806 19850805 USAR 75 01/00/00 19850806 19860805 USAR 82 01/00/00 19860806 19870805 USAR 75 01/00/00 19870806 19880805 USAR 66 01/00/00 19880806 19890805 USAR 92 01/00/00 19890806 19900805 USAR 88 01/00/00 19900806 19910805 USAR 98 01/00/00 19910806 19920805 USAR 85 01/00/00 19920806 19930805 USAR 76 01/00/00 19930806 19940805 USAR 71 01/00/00 19940806 19950806 USAR 73 01/00/00 19950806 19950904 USAR 1 00/00/00 01/00/00 TOTAL 2181 19/11/08 REFERENCES: 1. Title 10, U.S. Code, sections 12731 through 12740 authorize retired pay for Reserve component military service. Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60. Section 12731 states a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person has attained the eligibility age applicable under the appropriate subsection and has performed at least 20 years of service computed under section 12732 of this title. 2. Department of Defense Instruction 1215.7 (Service Credit for Reserve Retirement), paragraph 6.1.5.2. states that when, as a result of a break-in-service, a partial year occurs, the Service member must meet the minimum retirement point requirement set out in this Instruction for the member's service to be credited as a partial year towards a qualifying year. A partial qualifying year is any period less than 12 full months in which the retirement points credited to a member, when computed proportionally, are equal to or greater than 50 points. 3. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: * Option A, elect to decline enrollment and choose at age 60 whether to start SBP participation * Option B, elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday * Option C, elect that a beneficiary receive an annuity immediately upon their death if before age 60; If death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity. DISCUSSION: 1. The applicant previously served in the USAF, USN, and Air National Guard. He then served in the USAR as a commissioned officer from 6 August 1980 to 4 September 1995. After correcting his retirement points and as verified by his most recent DA Form 5016, he completed 19 years, 11 months, and 8 days of qualifying years of service for non-regular retirement at age 60. 2. The law requires completion of 20 qualifying years of service in order to be eligible for non-regular retirement at age 60. At that time, the law required the last 8 years of qualifying service to have been completed in a Reserve Component status. He did not complete 20 qualifying years of service. From a statutory or regulatory standpoint, he is ineligible for non-regular retirement at age 60. 3. However, since his appointment in the USAR, the applicant was an active participant with a troop program unit, receiving membership points, completing his inactive and annual training, and in most years completing additional active duty points. With the exception of RYE 6 August 1981 through 5 August 1982 retirement year when he earned 36 points, all his years are qualifying or good years. A qualifying year is defined as one wherein the RC Soldier has earned 50 retirement points. 4. Based on his honorable service in the various components of the Armed Forces, both as an enlisted Soldier and a commissioned officer, it is clear that if he had been counseled properly or of his retirement points would have been accounted for properly, he would not have neglected completing the appropriate number of qualifying years of service. Unfortunately, he lacked 14 retirement points of reaching the required number of years. 5. The applicant earned in excess of 50 retirement points during all but one of his years in the USAR. As a matter of equity, by redistributing 14 of his excess points to RYE 6 August 1981 through 5 August 1982 would credit him with 50 retirement points for that RYE and thus a qualifying year and subsequently entitle him to a 20 year non-Regular retirement. 6. The above correction would entitle him to receipt of his notification of eligibility to receive retired pay at age 60 (his 20-year letter), as well as retired pay retroactive to age 60. There appears to be sufficient evidence to support his contention. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003824 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003824 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2