IN THE CASE OF: BOARD DATE: 3 August 2021 DOCKET NUMBER: AR20210005668 APPLICANT REQUESTS: * reinstatement of rank (Staff Sergeant (SSG)/E-6) * a warrant officer appointment * entitlement to retirement benefits APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored memoir/story * Marriage License, dated 11 March 1993 * DA Form 1811 (Physical Data and Aptitude Test Scores upon Release from Active Duty), dated 29 June 1983 * Honorable Discharge Certificates * Award Certificates * Letter of Appreciation, dated 9 August 1990 * Orders Number 1-1, dated 9 January 1982 * Orders Number 5-1, dated 21 June 1983 * Orders Number 01-01, dated 27 December 1990 * List of Courses * Bachelor of Arts Degree Certificate, dated 15 August 1986 * College Transcript * Certificate of Completion, dated 10 August 1990 * Course Completion Certificates and Certificates of Training * Interrogator Course Curriculum * Enlisted Evaluation Reports * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 25 February 1988 * Orders Number 94-151-057, dated 11 May 1994 * NGB Form 22 (Report of Separation and Record of Service) dated 16 November 1993 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (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 in part that he did not request to be discharged nor retired in 1993/1994 nor did he desire to do so. At the time, he was accepted to attend the Physician's Assistant course. At the time, it was both he and his wife's intention to attend the course and remain in the Army for 30 years and retire. As they prepared for transfer to the course, they were advised 2-weeks prior to attendance by members of his unit administration that the criteria for attendance had changed resulting in him no longer meeting the requirements. a. He argues that he never requested to be discharged. He notes that his issued DD Form 214 is void of his signature despite his residing at the same address for 2 years. He was never made aware of this DD Form 214 nor the need of his signature until his Congressman assisted with obtaining his Official Military Personnel file (OMPF) in 2019. b. His DD Form 214 reflects 19 years, 5 months, and 17 days of service credit for pay purposes. He contests that it was suggested by a member of the Office of the Inspector General at Fort Riley, KS that this information applies to the 4 boxes related to it, but does not apply to the large amount of points available at the time for successful graduation from various military courses attended over the course of 14 years while serving as a member of the Special Operations community. Further noted is that the application of the points obtained while attending these course would be more than sufficient to result in his entitlement to retired pay, while also being considered for sanctuary having completed 18 years of service. He believes that the points for this service were deliberately omitted to permit his discharge rather than retirement. Had he been retired he would have attended transition briefings, of which did not occur. c. For these reasons, it is easy to see the outcome of his career as permitted things to be as they have for over 30 years as a punishment of a demented Warrant Officer seeking revenge rather than his retention. He adds that if the information on his DD Form 214 is accurate, he should have received sanctuary and permitted to complete his service. 3. A review of the applicant's available service records reflects the following: a. After previously serving in the U.S. Navy, on or about 9 January 1982, the applicant enlisted in the U.S. Army Reserve (USAR). b. On 1 July 1982, the applicant was ordered to active duty for attendance and completion of the 96B (Intelligence Analyst) course. c. On 21 June 1983, the applicant was promoted to the rank/grade of Specialist 5 (SP5)/E-5. d. On 29 June 1983, the applicant was released from active duty and transferred back to his assigned USAR unit. DD Form 214 reflects 3 years, 2 months, and 2 days of total prior active service and 4 years, 10 months, and 10 days of total prior inactive service. The applicant served on active duty for 11 months and 29 days during this period. e. On 1 October 1985, the applicant's rank was changed to SGT. f. On 4 October 1987, the applicant was again ordered to active duty for training. g. On 25 February 1988, the applicant was released from active duty and transferred back to his assigned unit. DD Form 214 reflects 4 years, 4 months, and 2 days of total prior active service and 8 years, 10 months, and 24 days of total prior inactive service. The applicant served on active duty for 4 months and 22 days during this period. h. On 22 May 1989, the applicant was again ordered to active duty for training in order to attend and complete the 91C (Practical Nurse) course. i. On 10 August 1990, the applicant was released from active duty and transferred back to his assigned unit. DD Form 214 reflects 4 years, 8 months, and 24 days of total prior active service and 10 years, 1 month, and 28 days of total prior inactive service. The applicant served on active duty for 1 year, 2 months, and 19 days during this period. j. On 23 December 1990, the applicant was ordered to active duty in support of Operation Desert Shield/ Desert Storm. k. On 22 May 1991, the applicant was released from active duty at the rank/grade of Staff Sergeant (SSG)/E-6 and transferred back to his assigned unit. DD Form 214 reflects 5 years, 11 months, and 13 days of total prior active service and 10 years, 6 months, and 11 days of total prior inactive service. The applicant served on active duty for 5 months and 15 days during this period. l. On 26 December 1991, Headquarters, 102nd USAR Command issued Orders Number 205-004, reassigning the applicant from his Reserve unit to the U.S. Army Control Group (Reinforcement) effective 1 January 1992 at the rank of SGT due to an employment conflict. m. On 6 April 1993, the USAR Personnel Center, St. Louis, MO, issued Orders Number C-04-312628 voluntarily reassigning the applicant to a USAR unit effective 6 April 1993 at the rank of SGT. n. On 16 November 1993, the applicant enlisted in the Missouri Army National Guard (MOARNG) for 6 years. The National Guard Bureau issued an NGB Form 22 reflective of his enlistment in the Army National Guard on 16 November 1993. (1) Item 5a (Rank) contains the rank of SSG with a 16 November 1993 coinciding date of rank. (2) Item 10 (Record of Service) reflects 13 years and 5 days of prior Reserve Component service, 6 years, 5 months, and 13 days of prior active federal service and a total of 19 years, 5 months, and 17 days of total service credit for pay purposes. (3) Item 23 (Authority and Reason for Discharge) indicates National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-26u (upon issuance of orders to active duty when a Soldier absents himself without authority; discharge upon receipt of orders). This document is void of the applicant's signature citing that the "individual was unavailable for signature." o. On 3 March 1994, the MOARNG issued Orders Number 062-045 discharging the applicant from the ARNG effective 16 November 1993 under the provisions of NGR 600-200 paragraph 8-26u. p. On 11 May 1994, Headquarters, USAR Command issued Orders Number 94-151-057 discharging the applicant from the USAR effective 11 May 1994. 4. The applicant provides the following a: a. Self-Authored memoir/story reflective of the applicant's account of events proceeding his discharge. Notably the applicant highlights an interaction with a Warrant Officer which he believes had a personal grudge against him due to his previously reporting of an incident involving fraudulent acts performed by a female Soldier, referred to as his "arm charm." The applicant alleges that in retaliation for reporting this incident, the Warrant Officer utilized a personal incident occurring in 1987 (bankruptcy) as the foundation to have his security clearance revoked and ultimately considered for discharge. The applicant further challenges the absence of service credit for previous military education attendance, his intent to attend the Physician Assistants course as evidence of his desire for continued military service and unlikely election to separate from service early, with over 19 years of service credit. This entire document is contained within the supporting documents for the Boards review. 1) With regard to his requested promotion, the applicant contests that he was promoted to SSG on or about 27 December 1990 by an unknown Lieutenant General. He refers to this as a "combat zone meritorious promotion." He was then subsequently promoted to Sergeant First Class (SFC)/E-7. He adds that this promotion was later revoked by the Warrant Officer. 2) With regard to his appointment as a Warrant Officer, the applicant contests that following completion of the Physician's Assistant's course, he would have been commissioned at the rank of Warrant Office One (WO1) and remained in the military for an additional 10 years. As such, he should receive back pay accordingly. b. Marriage License, dated 11 March 1993, reflective of his legal union with Ms. M_ on 11 March 1993 in Wichita, KS. c. DA Form 1811, dated 29 June 1983, reflective of his physical status at the time of separation. d. Honorable Discharge Certificates reflective of his recognized service within the U.S. Navy; discharged in June 1968 and September 1981. e. Award Certificates reflective of the applicant being recognized for meritorious service throughout multiple periods of his military career. In total, the applicant was presented 4 Army Achievement Medals issued between March 1988 and February 1990. f. Letter of Appreciation, dated 9 August 1990, reflective of the applicant being recognized for his duty performance as a Platoon Sergeant while attending the 91C course. g. Orders Number 1-1, dated 9 January 1982, reflective of the applicant's promotion to the rank/grade of Specialist (SPC)/E-4. h. Orders Number 5-1, dated 21 June 1983, reflective of the applicant's promotion to "Specialist 5" (SP5)/E-5, later referred to as Sergeant. i. Orders Number 01-01, dated 27 December 1990, reflective of the applicant's promotion to SSG effective 27 December 1990. j. List of Courses that the applicant has completed and their duration. These courses are reflected on the applicant's DA Form 2-1 (Personnel Qualification Record). k. Bachelor of Arts Degree Certificate, dated 15 August 1986, from Brigham Young University. l. College Transcript reflective of courses completed at Brigham Young University resulting in his Bachelor of Arts Degree being conferred. m. Certificate of Completion dated 10 August 1990 reflective of his completion of the Vocational Nursing program at St. Philip's College. n. Course Completion Certificates and Certificates of Training reflective of the applicant's attendance and completion of military training within various courses such as the Intelligence Analyst Course, Instructor Training Course (2 weeks), Modern Standard Arabic Language Course (36 weeks) as well as the completion of several correspondence courses. o. Interrogator Course Curriculum reflective of the sub-courses and or individual blocks of instruction associated with this course constituting 91 total hours of training. p. Enlisted Evaluation Reports reflective of the applicant's performance as assessed by members of his immediate leadership. 5. The applicant's DA Form 2-1 indicates that his promotion to SSG on 27 December 1990 was revoked. His available military records are void of evidence (orders) and or information pertaining to the circumstances resulting in this action. The applicant's NGB Form 22 issued on his date of separation reflects the rank of SSG (as requested within his statement to the Board) with a date of rank of 16 November 1993. This form further provides that although the applicant enlisted in the ARNG on 16 November 1993, his records are void of service within the ARNG as evidenced by the enlistment date and effective date provided by this document. 6. The applicant did not provide nor does review of his available personnel records reflect a DA Form 1506 (Chronological Statement of Retirement Points), DA Form 1380 (Record of Individual Performance of Reserve Duty Training), DD Form 108 (Computation of Service) or Leave and Earnings Statements reflective of periods of active duty service wherein the applicant did not receive service credit. Further, the applicant's records are void of a Notification of Eligibility for Entitlement to Retired Pay at Age 60 (20-year letter) indicative of his completion of 20 qualifying years of creditable service. Further, the applicant's records are void of any information pertaining to his application, qualification and or consideration for appointment as a Warrant Officer during any period of service. 7. On 22 June 2020, the applicant's Congressional Representative was notified by the U.S. Army Human Resources Command, Chief, Gray Area Retirements Branch that a thorough review of the applicant's available military records revealed that he had one DD Form 214 with 5 months and 15 days of qualifying service. After 1 July 1949 a qualifying year is defined as having earned at least 50 retirements points per year for that service to be creditable for retirement. The applicant was to be advised that he could request his records from the National Personnel Records Center and submit the proper documentation to this branch to have his retirement points recalculated. 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. The Board also considered the HRC Congressional response. The Board agreed the applicant’s qualified service for retirement encompasses time served for over 30 years. However, the HRC letter only references a few months of active duty time, but his numerous DD Forms 214 shows numerous years of active duty service. The Board determined there is sufficient evidence available that would allow HRC to make an appropriate determination of his qualified points for retirement purposes. The Board also agreed there is insufficient evidence to support consideration for an advancement in rank to SSG without first being on the retired list, and there is no merit to his request for promotion to a warrant officer. 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 having HRC consider the official documents from his record to: a. determine his total number of qualified service for retirement, and whether he should have been issued a notification of eligibility of retired pay (20-year letter); b. if a 20-year letter is warranted, publish the letter, and amend his discharge orders to show he was released from his Reserve Component status and transferred to the Retired Reserves; and placed on the AUS Retired list when he reached the age of 60; and c. paying him back pay and allowances if warranted. 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 a retirement without HRC’s verifying computation, and no advancement in rank. 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, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Department of Defense (DOD) Finance Management Regulation (FMR) 7000.14 provides that a service member must complete at least 20 years of creditable service in order to qualify for retired or retainer pay. Upon completion of 20 years of creditable service, a member may request to be transferred to a retired or retainer status. 3. Army Regulation (AR) 135-180 (Retirement for Non-Regular Service) provides that to eligible for retired pay at or after age 60, an individual need not have military status at the time of application, but must have completed a minimum of 20 years of qualifying service computed under Title 10, USC, section 12732 (Entitlement to Retired Pay: Computation of Years of Service) or, 15 years of qualifying service, and less than 20, computed under Title 10, USC, section 12732, if the individual is to be separated because the Soldier has been determined unfit for continued Selected Reserve service. Soldiers who complete the eligibility requirements in section I will be notified in writing within 1 year after completion of the required service. 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. a. 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. b. After 30 June 1949 (Qualifying Service), a Reservist must earn a minimum of 50 retirement points (1 point for each day of active duty) each retirement year to have that year credited as qualifying service. Only Soldiers assigned to an active status in a Reserve Component or individuals in active Federal service are authorized to earn retirement point credits. When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service. c. If the Soldier was transferred to the Retired Reserve or discharged on or after 25 February 1975, retired grade will be that grade which a commissioned officer or enlisted Soldier held while on active duty or in an active reserve status for at least 185 days or 6 calendar months. d. Discharged Soldiers with no military service obligation will receive an updated DA Form 5016 if a request is received with supporting documents and an account is already established in the Retirement Point Accounting System. Supporting documents must be included with the request. If Soldier's points are no longer available on the Retirement Point Accounting System, a statement of service will be issued to verify the retirement points. 4. Title 10, USC, section 12686 (Reserves on Active Duty Within 2-years of Retirement Eligibility: Limitation on Release from Active Duty) commonly referred to as "18-year lock in or Sanctuary" is the term that is used for Reserve Component Soldiers who are mobilized, and have achieved at least 18 years, but less than 20 years of Active Federal Service (AFS). USAR Soldiers must apply for sanctuary and may be retained by law until they reach 20 years AFS when they become eligible for retirement pay. This provision is limited under regulations to be prescribed by the Secretary concerned, which shall be as uniform as practicable, a member of a Reserve Component who is on active duty (other than for training) and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system (other than the retirement system under chapter 1223 of this title), may not be involuntarily released from that duty before he becomes eligible for that pay, unless the release is approved by the Secretary of the Army. To be eligible for participation in the Sanctuary Program, enlisted Soldiers must be an Army Reserve or Army National Guard Soldier on active duty (except for training), must have reached 18 years of AFS, but less than 20 years and not be on annual training (AT), active duty for Training (ADT) or initial active duty for training (IADT). The applicant was not on active duty prior to be discharged, therefore this provision (Sanctuary) is not applicable. 5. AR 135-178 (Separation of Enlisted Personnel) in effect at that time provides that Soldiers who have completed 18 or more years of qualifying service for retired pay will not be discharged without the approval of the Commander, Army Reserve Personnel Center (ARPERCEN). The applicant's records do not reflect this amount of qualifying years therefore this provision is not applicable. 6. NGR 600-200 (Enlisted Personnel Management) in effect at that time provides that the Chief, National Guard Bureau is the approval authority for the involuntary discharge of ARNG Soldiers who have completed 18 but less than 20 years of service qualifying for retired pay at age 60. All Involuntary administrative discharges require commanders to notify Soldiers concerning the intent to initiate discharge procedures. NGB Form 22 will be prepared for every Soldier being discharged from the ARNG. If Soldier indicated "Decline copies of my NGB Form 22" or is not available to sign item 27, copy number 1 will be retained in the official Military Personnel Records Jacket maintained by the State and later given to the individual if requested. Item 10d (Total Service for Pay) will contain the total service by adding item 10a (Net Service this Period), 10b (Prior Reserve Component Service) and 10c (Prior Active Federal Service). 7. AR 635-5 (Personnel Separations) states that the DD Form 214 will reflect the conditions and circumstances that existed at the time the records were created. The purpose of the separation document is to provide the individual with documentary evidence of his or her military service at the time of release from active duty, retirement, or discharge. It is important that information entered on the form be complete and accurate and reflects the conditions as they existed at the time of separation. Personnel officers will prepare and authenticate DD Form 214WS (Worksheet) prior to forwarding records to the transfer facility. All available records will be used as a basis for the preparation of DD Form 214WS, including DA Form 2-1 (Personnel Qualification Record) and orders. USAR Soldiers will only be issued a DD Form 214 completing 90 days or more of continuous active duty for training (ADT), Full-Time National Guard Duty (FTNGD), active duty for special work (ADSW), temporary tours of active duty (TTAD), or Active Guard Reserve (AGR) service. Item 4a. (Grade, Rate or Rank) will contain active duty grade or rank and pay grade at time of separation from active duty as reflected on the DA Form 2-1. 8. 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) AR20210005668 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1