ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 January 2022 DOCKET NUMBER: AR20210011617 APPLICANT REQUESTS: correction of the Former Service Member's (FSM) record to reflect 32 years and 8 months of military service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . Self-authored letter . DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 15 January 1992 . National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 22 May 1995 . U.S. Army Human Resources Command (HRC) letter, dated 7 May 2013 . Orders Number C05-393659, dated 7 May 2013 . Memorandum – Subject: Involuntary Cross Leveling, dated 25 November 2002 . Memorandum – Subject: Involuntary Reassignment, dated 25 November 2002 . Letter, dated 26 January 2021 . Leave and Earnings Statement (LES), dated 7 October 1981 . Orders Number 03-329-00194, dated 25 November 2003 . Certificate of Achievement, dated 19 November 1993 . Orders Number 05-055-00023, dated 24 February 2005 . Notification of Eligibility for Retired Pay at Age 60 (15-Year Letter) . Excerpt from DA Pamphlet 635-40 (Procedures for Disability Evaluation for Retention, Retirement, or Separation) . Excerpt from Army Reserve Personnel Center (ARPERCEN) Pamphlet 135-2 (Handbook on Retirement Services for Army Reserve Component Personnel and their Families) . Excerpt from Gulf War and Health: Volume 5; Infectious Diseases . DA Form 3349 (Physical Profile), dated 16 October 2004 . Excerpt from the Gulf War Service -Public Health . Summary of Retired Pay Account . DD Form 2058 (State of Legal Residence Certificate), dated 8 March 2003 . DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the U.S.), dated 3 October 2004 . DD Form 93 (Record of Emergency Data), dated 8 March 2003 . SGLV 8286 (Servicemembers Group Life Insurance Election and Certificate), dated 8 March 2003 . DA Form 4187 (Personnel Action), dated 10 January 2005 . DD Form 108 (Application for Retired Pay Benefits), dated 29 June 2012 . AHRC Form 249 (Chronological Statement of Retirement Points), dated 3 May 2012 . DD Form 1172-2 (Application for Identification Card/ Defense Enrollment Eligibility Reporting System (DEERS) Enrollment) . DD Form 2656 (Data for Payment of Retired Personnel), dated 14 July 2012 . Certificate of Retirement, dated 29 June 2013 . Certificate of Death. dated 28 December 2020 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. On behalf of the FSM, the applicant states in pertinent part that due to bias conduct, the FSM became medically disqualified for his last assignment to Iraq. Further, the FSM was misinformed by members of his leadership to sign a 15-year letter without due process or a fair evaluation. At the time of the FSM's separation, his former unit mishandled numerous military documents and returned files to Soldiers. This action prevented Soldiers from receiving a fair evaluation and entitlement to due process under the law. At the time, the FSM feared that he would lose his entitlement to retired pay if he complained about the process. However, he deserves to be recognized for his 32 years and 8 months of service. a. In a self-authored letter, the applicant further provides that the FSM served this country for 32 years and 8 months. He was very proud to be a staff sergeant (SSG)/E-6 and worked very hard for all that he earned. The FSM was misled to believe that if he did not sign the 15-year medical disability letter, he would lose entitlement to retired pay. As such, the FSM was very prideful and did not want to lose his ability to provide for the applicant when he retired. b. The applicant is determined to give the FSM his rightful place within the military even if it means that she is no longer entitled to receipt of his retirement annuity. Prior to his passing, the FSM only had one request and that was to be buried at Arlington National Cemetery with full honors as he deserves for his over 32-years of military service to this country. c. The applicant requests that a review for grade determination be conducted in order for her to properly bury the FSM with fair and equitable treatment awarded. Due to a reorganization within the FSM's unit, numerous Soldiers military records were simply handed over to them for safekeeping. This action resulted in a lot of important documentation related to receiving a retirement annuity and appropriate military service credit being misplaced. 3. A review of the FSM's available personnel records reflects the following: a. On 7 October 1981, the FSM enlisted in the Army National Guard (ARNG) for 6 years. On 20 September 1987, the FSM reenlisted in the ARNG for 6 years and on 27 June 1993, the FSM extended his enlistment for 6 years. b. On 22 May 1995, the FSM was released from the ARNG and transferred into the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve (IRR)). He completed 13 years, 7 months, and 16 days of net service. c. On 7 August 1999, the FSM reenlisted in the USAR for 6 years and was assigned to a Troop Program Unit (TPU) and on 3 October 2004, the FSM reenlisted for an indefinite period. The DD Form 4 associated with this reenlistment shows the FSM had 8 years of active military service and 14 years, 1 month, and 3 days of inactive military service. d. On 24 February 2005, Headquarters, 99th Regional Readiness Command issued Orders Number 05-055-00023 reassigning the FSM from a TPU to the Retired Reserve in the rank of SSG due to being medically disqualified for continued military service, effective 1 March 2005. e. On 27 April 2013, the FSM received his Notification of Eligibility for Retired Pay at Age 60 (15-Year Letter) reflective of the FSM being ineligible for retention in the Selected Reserve due to a medical disqualification. This letter was issued recognizing that the FSM had attained at least 15 years but less than 20 years of qualifying service making him eligible to apply for retired pay and benefits upon attaining age 60. Paragraph 2 provides that the FSM was not entitled to earn additional points towards non-regular retired pay unless specifically authorized by the Secretary of the Army. 4. The applicant provides the following a: a. DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 15 January 1992, reflective of the FSM's active duty service performed from 21 July 1991 – 15 January 1992, in support of Operation Desert Shield/Desert Storm. b. HRC letter, dated 7 May 2013, reflective of the FSM's request for retired pay being approved. c. Orders Number C05-393659, issued by HRC, dated 7 May 2013, reflective of the FSM being placed on the Retired list, effective 29 June 2013. d. Memorandum – Subject: Involuntary Cross Leveling, dated 25 November 2002, reflective of Soldiers assigned to the 99th Regional Support Command and or its subordinate units being involuntarily reassigned to fill positions and provide critical skills to improve the readiness of selected units. e. Memorandum – Subject: Involuntary Reassignment, dated 25 November 2002, reflective of Soldiers assigned to the 99th Regional Support Command and or its subordinate units being involuntarily reassigned to fill positions and provide critical skills to improve the readiness of selected units. f. Letter, dated 26 January 2021, reflective of a letter of condolence provided to the applicant from Senator K_ in recognition of the passing of the FSM. The letter recognizes the FSM's 24 years of service within the Army (USAR and ARNG). g. LES, dated 7 October 1981, reflective of the FSM receiving pay and entitlements based on 22 years of service. h. Orders Number 03-329-00194, issued by the 99th Regional Readiness Command, dated 25 November 2003, reflective of the FSM being ordered to active duty in support of Operation Iraqi Freedom for a period of 548 days, with a report date of 7 December 2003. i. Certificate of Achievement, dated 19 November 1993, reflective of the FSM being recognized for his personal contributions to Operation Desert Shield/Desert Storm. j. Excerpt from DA Pamphlet 635-40 reflective of information pertaining to policy and responsibilities for the disability evaluation and disposition of Soldiers who may be unfit to perform their military duties due to physical disability. k. Excerpt from ARPERCEN Pamphlet 135-2, reflective of information pertaining to continued military service in the Reserve Components after obtaining 20 qualifying years of service. l. Excerpt from Gulf War and Health: Volume 5; Infectious Diseases reflective of the number of documented cases and diseases related to the Gulf War. With emphasis on unspecified viral hepatitis without hepatic coma. m. DA Form 3349, dated 16 October 2004, reflective of the FSM being issued a permanent profile for Hepatitis C. Issuance of this performance limiting profile indicates that the FSM failed to meet retention standards and therefore required referral to either a Medical Evaluation Board or a Physical Evaluation Board. This condition prevented the applicant from being a deployment asset. n. Excerpt from the Gulf War Service -Public Health, reflective of areas identified as "Gulf War" service areas at any time from 2 August 1990 to present. o. Summary of Retired Pay Account, reflective of the calculations utilized to determine the FSM's retired pay amount. The applicant adds that the calculations are incorrect based on the FSM's 32 years and 8 months of service. p. DD Form 2058, dated 8 March 2003, reflective of the FSM being a legal resident of Virginia for taxation purposes. q. DD Form 93, dated 8 March 2003, reflective of the FSM identifying the applicant as the beneficiary for certain benefits in the event of his death. r. SGLV 8286, dated 8 March 2003, reflective of the FSM being automatically insured for $200,000.00 with the applicant being entitled to a lump sum payment of the annuity in the event of his death. s. DA Form 4187, dated 10 January 2005, reflective of the FSM being counselled concerning his early retirement eligibility. Section IV (Remarks) indicates acknowledgment by the applicant that he had completed at least 15 years but less than 20 years of qualifying service for non-regular retired pay. t. DD Form 108, dated 29 June 2012, reflective of the FSM indicating that he served in the USAR from 16 January 1992 -16 January 2005 and was on active duty from 7 October 1982 – 15 October 1992. u. AHRC Form 249, dated 3 May 2012, reflective of the FSM having 17 years, 3 months, and 9 days of qualifying service towards retirement. v. DD Form 1172-2 reflective of the FSM applying for an updated identification card for his spouse. w. DD Form 2656, dated 14 July 2012, reflective of the FSM's election to participate in the Survivor Benefit Plan. The FSM elected "spouse only coverage." x. Certificate of Retirement, dated 29 June 2013, reflective of the FSM being recognized for his faithful and honorable service in the U.S. Army. y. Certificate of Death, dated 28 December 2020, reflective of the FSM's passing on 22 December 2020. 5. Review of the FSM's most recent DA Form 5016, dated 10 January 2022 reflects 17 years, 3 months, and 9 days of total qualifying service towards retirement. 6. On 18 October 2021, the HRC, Chief, Army Service Center provided a letter wherein he states that they were unable to make changes to the FSM's DA Form 5016 (Chronological Statement of Retirement Points). The FSM served in the ARNG from 7 October 1981 – 22 May 1995, not the Regular Army. 7. On 28 October 2021, the applicant was provided with a copy of the documentation provided by HRC and afforded 15 days to provide a response. As of 10 January 2022, the applicant had not responded. 8. 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. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Board members noted that according to the most recent DA Form 5016, the FSM had completed 17 years, 3 months, and 9 days of total qualifying service towards retirement. Because he completed less than 20 but more than 15 qualifying years, he was issued a 15-Year (rather than a 20-Year Letter). In the absence of supporting documents from his State ARNG that show he completed additional retirement points that were not credited, Board members found insufficient evidence to support granting the requested relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: XX: DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10, USC, 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 ABCMR determines it would be in the interest of justice to do so. 2. 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 3. AR 135-180 (Retirement for Non-Regular Service) provides that ARNG Soldiers will have an electronic copy of their NGB Form 23A (Annual Retirement Point Statement) and NGB Form 23A1 (ARNG Retirement Points Statement Supplemental), sent to their unit annually by the State Adjutant General (Military Personnel Management Office/G1) for review. Soldiers will review their retirement point statement at least annually and provide supporting documents to correct any deficiencies through their chain of command to their State Retirement Points Accounting Management administrator. Supporting documents per AR 140–185 (Training and Retirement Point Credits and unit Level Strength Accounting) and National Guard Regulation 680–2 (Automated Retirement Points Accounting Management) may include, but are not limited to: DD Form 214, DD Form 215 (Correction to DD Form 214), DD Form 220 (Active Duty Report), NGB Form 22, NGB Form 22A (Correction to NGB Form 22), NGB Form 23A, NGB Form 23A1, NGB Form 23B (ARNG Retirement Points History Statement) and NGB Form 23C (ARNG Retirement Points Statement Application for Retired Pay), DA Forms 1379 (Unit Record of Reserve Training), DA Form 1380 (Record of Individual Performance of Reserve Duty Training), DA Form 1383 (Annual or Terminal Statement of Retirement Points), other Services retirement point statements, DFAS Form 702, and copies of Soldiers’ master military pay accounts. Soldiers should be counseled and advised to retain copies of all DA Forms 5016 and/or NGB Forms 23 and related documents. DA Forms 5016, NGB Forms 23, and the Reserve Retirement Repository are all valid sources for retirement service validation. a. HRC will update the DA Form 5016 for USAR Soldiers annually at the end of their Annual Year (AY) and place it into their on-line record at http://www.hrc.army.mil for their review. Soldiers will review their retirement point statement annually and provide supporting documents to correct any deficiencies through their chain of command to HRC in accordance with AR 140–185. When local records available in Reserve units or in the Soldier’s military records do not conclusively establish the Soldier’s creditable service and completion of 20 years qualifying service, or mandatory removal from active status, other than through elimination action or age, is imminent; commanders will request DA Form 1506 (Statement of Service for Computation of Length of Service for Pay Purposes) to verify the doubtful period(s). 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. b. Paragraph 2-2 (Basic Qualifying Service Requirements) provides that to be eligible for retired pay, an individual need not have military status at the time of application, but must have completed one of the following: . minimum of 20 years of qualifying service computed under Title 10, USC, section 12732; 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 medically disqualified/unfit for continued Selected Reserve service c. Time spent in the Retired Reserve, Inactive Reserve or Inactive National Guard is not creditable as qualifying service. 4. AR 15-80 (Army Grade Determination Review Board (AGDRB)) states in paragraph 1-13 the AGDRB will make final discretionary grade determinations on behalf of the Secretary of the Army for—a. Enlisted Soldiers at time of separation; this will usually apply only to disability cases. b. Retiring or retired enlisted Soldiers or warrant officers in 30-year cases. Enlisted Soldiers will usually retire in the grade held on the day before their placement on the retired list and are not subject to discretionary grade determinations, except for disability separations and 30-year cases. //NOTHING FOLLOWS//