BOARD DATE: 1 November 2016 DOCKET NUMBER: AR20160016292 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: 1 November 2016 DOCKET NUMBER: AR20160016292 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 31 of the applicant's excess retirement points to the retirement year ending 28 July 2005 to provide him with a full qualifying year of service for this retirement year * issuing him a 20-year letter 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 with entitlement to back retired pay * providing him the opportunity 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. BOARD DATE: 1 November 2016 DOCKET NUMBER: AR20160016292 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, correction of his records to show he qualified for non-regular retirement. 2. The applicant states he was not given the opportunity to extend so he could reach 20 years. He was told by his retention officers that he had sufficient years for non-regular retirement, so he sent in his paperwork to retire. The denial did not come back until after he had already turned 60; by then he had completed 19 years and 11 months of qualifying service. 3. The applicant provides: * Orders 14-288-0004, discharging him from the U.S. Army Reserve (USAR) * Department of the Air Force memorandum * Orders 15-356-00007, transfer to the Retired Reserve * AHRC Form 249 (Chronological Statement of Retirement Points) * Copy of driver license and identification card CONSIDERATION OF EVIDENCE: 1. The applicant was born on 18 October 1954. He served in the Regular Air Force from 28 March 1980 to 27 February 1986, completing 5 years and 11 months of active service. 2. He enlisted in the North Carolina Army National Guard (NCARNG) on 29 July 1999 and he held military occupational specialties 51B (Carpentry and Masonry Specialist), 31B (Military Police), and 92Y (Unit Supply Specialist). 3. He entered active duty on multiple occasions, as follows: * 11 November 2001 to 19 October 2002 – he served in Bahrain from 25 November 2001 to 14 October 2002 * 20 October 2002 to 12 August 2004 – he served in Cuba from 9 September 2003 to 6 July 2004 4. He was discharged from the ARNG on 28 July 2005. An NGB Form 22 (Report of Separation and Record of Service) for his ARNG service is not available for review. 5. He enlisted in the USAR on 6 October 2005. He served on active duty from 15 July 2008 to 14 July 2010. He was promoted to staff sergeant (SSG)/E-6 on 1 November 2008. 6. On 15 October 2014, Headquarters, USAR Command, Fort Bragg, NC, published Orders 14-288-00004 ordering his honorable discharge from the USAR on 18 October 2014, in accordance with Army Regulation (AR) 135-178 (ARNG and USAR Enlisted Administrative Separations) after having reached maximum age. 7. On 22 December 2015, Headquarters, USAR Command, Fort Bragg, NC, published Orders 15-356-00008 revoking Orders 14-288-00004, pertaining to his discharge from the USAR on 18 October 2014, in accordance with AR 135-178, due to reaching maximum age. 8. On 22 December 2015, the U.S. Army Human Resources Command (HRC) audited his retirement points and published Orders 15-356-00007, transferring him to the Retired Reserve effective 1 December 2014. 9. 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 and 11 months of qualifying service for non-regular retirement. A breakdown of his retirement points is as follows: FROM TO Component Points QUAL YEAR Prior Service 5 Yrs/11Months 19990729 20000728 ARNG 52 01/00/00 20000729 20010728 ARNG 93 01/00/00 20010729 20020728 ARNG 306 01/00/00 20020729 20030728 ARNG 305 01/00/00 20030729 20040728 ARNG 366 01/00/00 20040729 20050728 ARNG 19 00/00/00 20050729 20051005 BREAK 20051006 20061005 USAR 66 01/00/00 20061006 20071005 USAR 79 01/00/00 20071006 20081005 USAR 132 01/00/00 20081006 20091005 USAR 365 01/00/00 20091006 20101005 USAR 297 01/00/00 20101006 20111005 USAR 72 01/00/00 20111006 20121005 USAR 84 01/00/00 20121006 20131005 USAR 82 01/00/00 20131006 20141005 USAR 88 01/00/00 20141006 20151005 USAR 15 00/00/00 TOTAL 4,571 19/11/00 10. On 19 January 2016, HRC rendered an advisory opinion in his case. An advisory official stated that the Reserve Components Retirement Branch changed the applicant's discharge entry to read "Retired Reserve" based on the revoked discharge orders issued by Headquarters, USAR Command. However, despite the change, the applicant still has 19 years and 11 months of qualifying service. A review of his points show they are correct. The applicant had a break in service totaling 4 years, 7 months, and 6 days. Additionally, during his last year with the ARNG (20040729-20050728), he only earned 4 inactive duty points (and 15 membership points). AR 135-80 (Qualifying Service for Retired Pay, Non-regular Service) states that a Reserve Soldier must have a minimum of 20 qualifying years under Title 10, U.S. Code, section 12732 in order to be eligible to receive retired pay. The applicant is not eligible to receive a 20-year letter and he is not eligible to receive retired pay. 11. The applicant was provided with a copy of this advisory opinion. He responded with faxed copies of his discharge orders, revocation orders, and Retired Reserve orders. He also asked to be reassigned to a troop program unit in order to complete 20 years of service. 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 Reserve Component Survivor Benefit Plan (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 U.S. Air Force from 28 March 1980 to 27 February 1986 and in the Army National Guard from 29 July 1999 to 28 July 2005. After a break in service, he enlisted in the U.S. Army Reserve. He was discharged on 18 October 2014 due to reaching maximum age. 2. However, his discharge orders were revoked, which allowed HRC to transfer him to the Retired Reserve instead, effective 1 December 2014. However, this did not change the fact that, after auditing his retirement points, his most recent DA Form 5016 shows he only completed 19 years and 11 months of qualifying service for non-regular retirement. 3. The law requires completion of 20 qualifying years of service in order to be eligible for non-regular retirement at age 60. 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. 4. However, during his enlistment in the ARNG and since his enlistment in the USAR, the applicant was an active participant with a troop program unit, received membership points, completed his inactive and annual training, and in most years completed additional active duty points. With the exception of the 29 July 2004 to 28 July 2005 retirement year when he earned only 19 points, all his years are qualifying or good years. A qualifying year is defined as one wherein the Reserve Component Soldier has earned 50 retirement points. 5. Based on his honorable service in the various components of the Armed Forces, it is clear that if he had been counseled properly or if his retirement points had been accounted for properly, he would not have neglected completing the appropriate number of qualifying years of service. Unfortunately, he was 31 retirement points short of reaching the required number of years. 6. 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 31 of his excess points to retirement year 29 July 2004 to 28 July 2005 would credit him with 50 retirement points for that year and would make him eligible for a 20 year non-regular 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) AR20160016292 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160016292 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2