IN THE CASE OF: BOARD DATE: 7 December 2020 DOCKET NUMBER: AR20200003448 APPLICANT REQUESTS: issuance of a Notification of Eligibility (NOE) for Retired Pay at Age 60 (20 Year Letter) resulting in entitlement to receipt of a Non Regular Retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 5016 (Chronological Statement if Retirement Points) dated 27 August 2019 * DD Form 2 (Retired) Identification Card FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states that she was medically retired from the United States Army Reserve (USAR) with 19 years of service credit towards retirement. She contests that she was advised that she would still receive a 20 year letter and be entitled to a Non- Regular Retirement. She has had her retirement I.D. card for years. Her previous Unit Administrator (UA) died prior to issuing her a 20 year letter. Her leadership requested it; however, she never received one. She currently needs credit for 1 additional year in order to qualify for a 20 year letter and a Non Regular Retirement. 3. A review of the applicant’s available service records reflects the following: a. On 28 July 1987 she enlisted in the USAR. b. On 3 August 2006, (Order Number 06-215-00034) she was deemed to be medically disqualified for continued military service and therefore transferred into the Retired Reserve effective 27 August 2006. At the time of her separation her records reflected 19 years of creditable service towards retirement. Current review of her published DA Form 5016 is void of any years where she failed to obtain 50 or more retirement points. c. On 13 December 2019, the United States Army Human Resources Command (HRC) denied her application for entitlement to retired pay citing that she was ineligible due to her completion of only 19 years of service. 4. The applicant provides the following: a. DA Form 5016 dated 27 August 2019 reflective of 19 creditable years towards retirement. b. DD Form 2 issued on 17 July 2007. 5. The applicant did not provide nor does her records reflect issuance of a 15/20 year NOE letter. 6. See applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that some relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Evidence of record shows the applicant obtained more than 15 years, but less than 20 years of credible service towards retirement at the time she was found medically disqualified for retention. The Board determined she should have received a notice of eligibility of retirement for 15 years (15-year letter) instead of 20 years. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XX :XX :XX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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. issuing her a 15-year letter b. allowing her the opportunity to submit an election for the Reserve Component Survivor Benefit Program; and c. issuing her orders showing she was placed on the retired list upon reaching the age 60 effective 28 November 2019 2. The Board further determined 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 providing her with 20 years of service credit towards retirement and a 20-year letter. 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. REFERENCES: 1. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 135-180 (Retirement for Non-Regular Service) provides within paragraph 2-4 (Notification of Eligibility for Retired Pay – 20 Year Letter) Under Title 10 USC, section 12731a RC Soldiers who complete the eligibility requirements in section I will be notified in writing within 1 year after completion of the required service in accordance with AR 140–185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) or NGR 680–2 (Automated Retirement Points Accounting Management). The Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) will be issued to Soldiers credited with 20 years of qualifying service and should be issued prior to discharge or transfer to the Retired Reserve. The Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) will be issued after a Soldier has been notified of their eligibility for retired pay for non-regular service, the Soldier’s eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service performed, unless it resulted directly from the fraud or misrepresentation of the individual concerned. However, the number of years of creditable service upon which retired pay is computed may be adjusted to correct any error, miscalculation, misinformation, or administrative determination, and when such a correction is made the person is entitled to retired pay in accordance with the number of years of creditable service, as corrected, from the date they are granted retired pay. a. For Soldiers who completed the years of qualifying service on or after 5 October 1994, but before 25 April 2005, the last 6 years of qualifying service must have been in a component other than a regular component. b. For Soldiers who completed the years of qualifying service on or after 25 April 2005, there is no minimum USAR service requirement. c. As a contingent to the above, the Soldier must not be entitled to retired pay from the Armed Forces under any other provision of law. An exception for this contingent under the provisions of Title 10 USC, section 12741, a person may elect to receive retired pay for non-regular service under Title 10 USC, chapter 1223 instead of regular retired pay under Title 10 USC, chapters 65, 367, if they served in an active status in the Selected Reserve of the Ready Reserve for a minimum of 2 years (excluding any period of active service) after becoming eligible for regular retired pay. 2. AR 600-8-7 (Retirement Services Program) paragraph 7-19 (Notification of Eligibility for Retired Pay at Non-Regular Retirement) provides that the Human Resources Command (HRC) will issue the 15 year Notification of Eligibility (NOE) letter to Soldiers medically disqualified from future service for physical or other medical reasons (Title 10 USC, section 12731(a)). These Soldiers will have served at least 15 but less than 20 years of qualifying service, and meet all other eligibility criteria for a non-regular retirement. 3. Title 10 USC, section 12731a (Temporary Special Retirement Qualification Authority) provides that the Secretary of Army may during the period described in subsection (b), determine to treat a member of the Selected Reserve of a reserve component of the armed force under the jurisdiction of that Secretary as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member – a. As of 1 October 1991, has completed at least 15, and less than 20, years of service computed under section 12732 of this title; or – b. After that date and before the end of the period described in subsection (b), completes 15 years of service computed under that section; and upon the request of the member submitted to the Secretary, transfer the member to the Retired Reserve. c. The period of authority referred to above begins on 23 October 1992 and ending on 31 December 2001. 4. Title 10 USC, section 1204 (Members on active duty for 30 days or less or on inactive-duty training: retirement) provides that upon a determination by the Secretary concerned that a member of the armed forces not covered by section 1201, 1202, or 1203 of this title is unfit to perform the duties of his office, grade, rank, or rating because of physical disability, the Secretary may retire the member with retired pay computed under section 1401 of this title, if the Secretary also determines that- (1) Based upon accepted medical principles, the disability is of a permanent nature and stable; (2) The disability- (A) was incurred before September 24, 1996, as the proximate result of- (i) performing active duty or inactive-duty training; (ii) traveling directly to or from the place at which such duty is performed; or (iii) an injury, illness, or disease incurred or aggravated while remaining overnight, immediately before the commencement of inactive-duty training, or while remaining overnight between successive periods of inactive-duty training, at or in the vicinity of the site of the inactive-duty training, if the site of the inactive-duty training is outside reasonable commuting distance of the member's residence; (B) is a result of an injury, illness, or disease incurred or aggravated in line of duty after September 23, 1996- (i) while performing active duty or inactive-duty training; (ii) while traveling directly to or from the place at which such duty is performed; or (iii) while remaining overnight, immediately before the commencement of inactive-duty training, or while remaining overnight between successive periods of inactive-duty training, at or in the vicinity of the site of the inactive-duty training; or (C) is a result of an injury, illness, or disease incurred or aggravated in line of duty- (i) while the member was serving on funeral honors duty under section 12503 of this title or section 115 of title 32; (ii) while the member was traveling to or from the place at which the member was to so serve; or (iii) while the member remained overnight at or in the vicinity of that place immediately before so serving, if the place is outside reasonable commuting distance from the member's residence; (3) the disability is not the result of the member's intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence; and (4) either- (A) the member has at least 20 years of service computed under section 1208 of this title; or (B) the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination 5. Title 10 USC, section 1401 (Computation of Retired Pay) provides that the monthly retired pay of a person that is medically retired due to disability, non-regular service is computed as follows: Formula No. For sections Column 1 Take Column 2 Multiply by Column 3 Add 1 1201 1204 Retired pay base as computed under section 1406(b) or 1407. As member elects- (1) the retired pay multiplier determined for the member under section 1409 of this title; 1 or (2) the percentage of disability, not to exceed 75%, on date when retired. 6. Title 10 USC, section 1407 (Retired Pay base for Members who First Became Members After 7 September 1980: High 36 Month Average) provides that the retired pay or retainer pay of any person entitled to that pay who first became a member of a uniformed service after September 7, 1980, is computed using the retired pay base or retainer pay base determined under this section. As a general rule the high-three average of a member entitled to retired or retainer pay under any provision of law other than section 1204 or 1205 or section 12731 of this title is the amount equal to the total amount of monthly basic pay to which the member was entitled for the 36 months (whether or not consecutive) out of all the months of active service of the member for which the monthly basic pay to which the member was entitled was the highest, divided by 36. This same rule applies to persons entitled to Non-Regular Service Disability Retired Pay. The high-36 months of a member or former member whose retired pay is covered by this provision are the 36 months (whether or not consecutive) out of all the months before the member or former member became entitled to retired pay or, in the case of a member or former member entitled to retired pay by reason of an election under section 12741(a) of this title, before the member or former member completes the service required under such section 12741(a), for which the monthly basic pay to which the member or former member was entitled (or would have been entitled if serving on active duty during those months) was the highest. In the case of a former member, only months during which the former member was a member of a uniformed service may be used for purposes of the preceding sentence. 7. Army Regulation (AR) 15-185 (ABCMR) paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200003448 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1