IN THE CASE OF: BOARD DATE: 18 November 2010 DOCKET NUMBER: AR20100008628 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 recalculation of his qualifying service for a U.S. Army Reserve (USAR) retirement at age 60 and reinstatement to active status and sanctuary so that he can complete the required service to qualify for retirement at age 60. 2. The applicant states that he was discharged on 4 December 2009 with his qualifying years only partially documented. He had over 18 years of qualifying service and should have been granted sanctuary to complete 20 qualifying years of service. 3. The applicant provides copies of two DD Forms 214 (Certificate of Release or Discharge from Active Duty) and his ARPC Form 249-E (Chronological Statement of Retirement Points). CONSIDERATION OF EVIDENCE: 1. The applicant was born on 13 March 1956. He was appointed a USAR officer and served on active duty from 1 August 1980 to 30 September 1992 until he was separated under the Voluntary Separation Incentive Program. 2. Between 1992 and 2003 he did not actively participate in the USAR. He became an active Reserve participant in May 2003. He was discharged as a major on 4 December 2009 due to being twice passed over for promotion. 3. During the processing of this case an advisory opinion was obtained from the U.S. Army Human Resources Command, St. Louis, Missouri. The Chief Transitions and Separations Branch states the applicant's active duty time was not properly recorded in the Retirement Points Accounting System (RPAS) and that, in fact, he had 19 qualifying years of service. The recommendation was that if the Board grants relief the applicant's discharge should be voided and he should be given 2 years to complete his 20th qualifying year. 4. The advisory opinion was provided to the applicant for comment. He did not respond. 5. His revised RPAS statement shows that on 4 December 2009, the date of his discharge, he had been credited with 48 points for this retirement year, which would have ended on 24 May 2010 had he not been discharged. He was only 2 points shy of completing his 20th qualifying year. Upon his discharge, he had earned a total of 6,029 retirement points. 6. The revised RPAS statement shows he was credited with 8 membership points during that last anniversary year, which ended early when he was discharged effective on 4 December 2009. 7. Title 10, U.S. Code (USC), sub-section section 12646(b) provides that reserve commissioned officers who are entitled to be credited with at least 19 but less than 20 years may not be discharged or transferred from an active status without their consent before the earlier of the following: the date on which they are credited with 20 years or the second anniversary of the date on which they would otherwise be discharged or transferred from an active status. DISCUSSION AND CONCLUSIONS: 1. The applicant states that he was discharged on 4 December 2009 with his qualifying years only partially documented. He has over 18 years of qualifying service and should have been granted sanctuary to complete 20 qualifying years of service. 2. The applicant had 19 years of creditable service for retirement at age 60 when he was discharged. In accordance with Title 10, USC, sub-section section 12646(b) he was entitled to be retained and granted sanctuary to complete 20 qualifying years. 3. Had the applicant been granted sanctuary, he would have earned an additional 7 membership points during the final anniversary year and he would have earned 55 points for the retirement year ending (RYE) on 24 May 2010. 4. Had he been properly retained, by doing absolutely nothing, the applicant would have had 20 years of qualifying service for pay at age 60. 5. In view of the foregoing findings and conclusions, it would be appropriate to rectify this injustice by correcting the applicant’s records as recommended below. BOARD VOTE: ____X___ ____X___ ___X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 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: a. voiding his 4 December 2009 discharge; b. crediting him with 7 additional membership points for RYE 24 May 2010; c. showing that he qualifies for retired pay at age 60; and d. transferring him to the Retired Reserve effective 25 May 2010. _______ _ _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. ABCMR Record of Proceedings (cont) AR20100008628 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100008628 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1