IN THE CASE OF: BOARD DATE: 27 March 2012 DOCKET NUMBER: AR20110012253 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 correction of his record to show he qualifies for Reserve retirement at age 60. 2. He states he was never given the opportunity or consented to being transferred to the inactive Reserve. He states he served 20 years in his troop program unit (TPU) and had reenlisted for 6 years with an expiration term of service (ETS) of 20 June 1993. He offers that if he had served until his ETS, he would have completed 20 qualifying years for retirement. He opines that his involuntary transfer to the inactive Reserve was based on reprisal from his commander for requesting short tours of duty through the U.S. Army Reserve (USAR) in St. Louis, MO. He concludes that his rights were not protected under sanctuary as required by regulation. 3. He provides the following: * self-authored statement * USAR Personnel Center (ARPC) Form 249-E (Chronological Statement of Retirement Points) * leave and earnings statements * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) * excerpts from Army Regulation 140-111 (USAR Reenlistment Program) * Congressional correspondence CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's records show he was born on 6 January 1948. He served on active duty in the Army of the United States for 1 year, 11 months, and 27 days. On 5 September 1969, he was honorably released from active duty and transferred to the USAR Control Group (Reinforcement). On 9 August 1975, he enlisted in the USAR. 3. He remained in the USAR through several reenlistments and he reenlisted for 6 years on 21 June 1987 in the rank/grade of sergeant first class/E-7. 4. A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 5 March 1991, contained in his military personnel file shows a flag was initiated on 21 February 1991 placing him in the weight control program. His body fat content worksheet shows his body fat percentage was 31.92 percent which was 5.92 percent over his maximum of 26 percent. 5. His DA Form 2166-7 (Noncommissioned Officer Evaluation Report) for the period October 1990 through September 1991 shows he received a rating of "Needs Improvement (Some)" in Part IVc (Physical Fitness and Military Bearing). He also received a rating of "NO" in height/weight with the comment: "Noncompliance of Army Regulation 600-9 (The Army Weight Control Program) due to lack of progress in weight control program." He received an overall rating of "Fully Capable" from his rater and a "Successful/Superior" rating of "2" from his senior rater with positive comments. 6. Headquarters, 102nd USAR Command, Orders 009-023, dated 29 January 1992, reassigned the applicant from his current unit assignment to the USAR Control Group (Reinforcement) effective the same date. The orders cited his failure to achieve weight control standards as the basis for his reassignment. 7. His record is void of any documents that extended his ETS past 20 June 1993 or any documents showing he was denied reenlistment. There are also no documents that show he was pending separation action. Likewise, there are no documents in his available file that show he consented to being removed from an active Reserve status. 8. ARPC Orders C-04-616379, dated 22 April 1996, released the applicant from the USAR Control Group (Reinforcement) and assigned him to the Retired Reserve. The effective date is shown as 22 April 1996. The reason cited is shown as completion of 20 or more years of Reserve duty. 9. ARPC Form 249-E, dated 9 February 2012, shows he completed 18 years, 11 months, and 29 days of qualifying service for a non-Regular retirement. This statement shows during the retirement year ending (RYE): * 7 September 1968 – he earned 366 active duty points for a total of 366 retirement points * 5 September 1969 – he earned 363 active duty points for a total of 363 retirement points and 11 months and 29 days of qualifying service for retirement * 8 August 1976 – he earned 43 inactive duty points and 15 membership points for a total of 58 retirement points * 8 August 1977 – he earned 36 inactive duty points, 15 membership points, and 14 active duty points for a total of 65 points * 8 August 1978 – he earned 42 inactive duty points, 15 membership points, and 14 active duty points for a total of 71 retirement points * 8 August 1979 – he earned 44 inactive duty points,15 membership points, and 15 active duty points for a total of 74 retirement points * 8 August 1980 – he earned 49 inactive duty points, 15 membership points, and 16 active duty points for a total of 76 retirement points * 8 August 1981 – he earned 48 inactive duty points, 13 extension course points, 15 membership points, and 14 active duty points for a total of 74 retirement points * 8 August 1982 – he earned 61 inactive duty points, 15 membership points, and 18 active duty points for a total of 78 retirement points * 8 August 1983 – he earned 62 inactive duty points, 15 membership points, and 83 active duty points for a total of 143 retirement points * 8 August 1984 – he earned 37 inactive duty points, 15 membership points, and 62 active duty points for a total of 114 retirement points * 8 August 1985 – he earned 39 inactive duty points, 15 membership points, and 26 active duty points for a total of 80 retirement points * 8 August 1986 – he earned 57 inactive duty points, 15 membership points, and 16 active duty points for a total of 76 retirement points * 8 August 1987 – he earned 59 inactive duty points, 15 membership points, and 41 active duty points for a total of 101 retirement points * 8 August 1988 – he earned 36 inactive duty points, 15 membership points, and 78 active duty points for a total of 129 retirement points * 8 August 1989 – he earned 63 inactive duty points, 15 membership points, and 133 active duty points for a total of 193 retirement points * 8 August 1990 – he earned 39 inactive duty points, 15 membership points, and 99 active duty points for a total of 153 retirement points * 8 August 1991 – he earned 44 inactive duty points, 15 membership points, and 16 active duty points for a total of 75 retirement points * 8 August 1992 – he earned 30 inactive duty points, 15 membership points, and 14 active duty points for a total of 59 retirement points * 8 August 1993 – he earned 6 inactive duty points and 15 membership points for a total of 21 retirement points and 0 qualifying years of service for retirement * 8 August 1994 – he earned 15 membership points for a total of 15 retirement points and 0 qualifying years of service for retirement * 8 August 1995 – he earned 15 membership points for a total of 15 retirement points and 0 qualifying years of service for retirement 10. Army Regulation 600-9 establishes policies and procedures for implementation of the Army Weight Control Program. a. Section III states that commanders and supervisors will ensure Soldiers maintain proper weight, body composition, and personal appearance. Soldiers who exceed the screening table weight and the body fat standard for their current age group will not be allowed to reenlist or extend their enlistment. For exceptions to policy for Soldiers who are otherwise physically fit and have performed their duties in a satisfactory manner, the commander exercising general court-martial convening authority or the first general officer in the Soldier's normal chain of command (whichever is in the most direct line to the Soldier) may approve the following exceptions: b. USAR Soldiers who have completed a minimum of 18 years of qualifying service for retired pay at age 60 may be extended for the minimum time required to complete 20 years of qualifying service. Approval/disapproval authority is prescribed in Army Regulation 140-111. Transfer to the Individual Ready Reserve, Retired Reserve, or discharge will be accomplished at the end of the retirement year in which the Soldier attains 20 qualifying years. 11. Title 10, U.S. Code: a. 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. b. Public Law 103-160, section 562b, provided that "subsection (b) of section 1176 of Title 10, U.S. Code, as added by subsection (a) shall take effect as of 23 October 1992." Section 1176(b)(2) states: A Reserve enlisted member serving in an active status who is selected to be involuntarily separated (other than for physical disability or for cause), or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause), and who on the date on which the member is to be discharged or transferred from an active status is entitled to be credited with at least 18 but less than 20 years of service computed under section 12732 of this title, may not be discharged, denied reenlistment, or transferred from an active status without the member's consent before the earlier of the following: (1) If as of the date on which the member is to be discharged or transferred from an active status the member has at least 18 but less than 19 years of service computed under section 12732 of this title: (A) the date on which the member is entitled to be credited with 20 years of service computed under section 12732 of this title; or (B) the third anniversary of the date on which the member would otherwise be discharged or transferred from an active status. 12. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing granting retired pay to Soldiers and former Reserve Component Soldiers. a. Paragraph 2-1 in effect at the time stated that to be eligible for retired pay an individual need not have a military status at the time of application, but must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 6 years of his qualifying service as a Reserve component Soldier. b. Paragraph 2-8 describes qualifying service as service performed in an active status in a Reserve Component or in active Federal service. After 30 June 1949, a Reserve member must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. 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. 13. Army Regulation 140-1 (Army Reserve Mission, Organization, and Training) states: a. The Control Group (Reinforcement) consists of all non-unit Ready Reserve Soldiers not assigned to another control group. b. The Retired Reserve consists of Soldiers who retain their status as Reserves of the Army and who are or have been retired from an active status or have been assigned at their requests and are otherwise qualified. c. USAR Soldiers who cannot take part in Reserve duty training or wish to augment this training may enroll in Army correspondence courses. Retirement points will be credited at the rate of 1 point for each 3 credit hours of nonresident instruction successfully completed. 14. Army Regulation 140-111 (U.S. Army Reserve Reenlistment Program), effective 9 June 2007, states: a. A Soldier assigned to the Selected or Ready Reserve or the Standby Reserve (Active Status List) is serving in an active status. The retention of an enlisted Soldier selected for involuntary separation (other than for physical disability or for cause) or denied reenlistment upon expiration of term of enlistment (other than for physical disability or for cause) in an active status after completion of 18 or more years but less than 20 years of qualifying service for retired pay is required by law (Title 10, U.S. Code, section 1176(b)) unless the Soldier consents to removal. A bar may be initiated against a Soldier serving in an active status who has completed 18 or more years but less than 20 qualifying years of service for retired pay. b. The voluntary or involuntary reassignment of a Soldier between the Selected and Ready Reserve and the Standby Reserve (Active Status List) will not affect the Soldier's retention for retirement eligibility, since the Soldier continues to serve in an active status. In addition, retention in an active status does not prevent release from active duty in an Active Guard Reserve status or reassignment from a TPU provided the Soldier is retained in an active status. c. Approval of a bar on Soldiers having 18 but less than 20 years of qualifying service for retired pay does not serve to deny the Soldier attainment of retirement eligibility. Commanders do not have the authority to deny such Soldiers from extending under the provisions of this regulation to attain retirement eligibility. Denial of voluntary retirement requires initiation of separation action. DISCUSSION AND CONCLUSIONS: 1. The applicant's record shows he reenlisted in the USAR for 6 years on 21 June 1987 which established his ETS as 20 June 1993. On 29 January 1992, he was reassigned to the USAR Control Group (Reinforcement) because of failure to achieve weight control standards. 2. The evidence shows he had over 18 years of qualifying service toward non-Regular retirement prior to his reassignment to the USAR Control Group (Reinforcement). Further, the evidence shows that from the time he was transferred to the USAR Control Group in June 1993 until the time he was released and reassigned to the Retired Reserve in April 1996, he failed to earn the 50 points necessary during each RYE period to be credited with a qualifying year. 3. As cited in paragraph 11b of this Record of Proceedings, the law governing retention of Reserve Soldiers with at least 18 but less than 20 qualifying years of service was enacted in 1993 and not effective until 23 October 1992, almost 9 months after he was transferred to the USAR Control Group (Reinforcement). Therefore, he was not eligible under the 18-year rule and not protected by "sanctuary." 4. It is unknown why he failed to earn the 50 points necessary to be credited with a qualifying year during the time he was assigned to the USAR Control Group. It appears he was aware that he only needed 1 year and 1 day of creditable service to qualify for a 20-year non-Regular retirement. As specified in Army Regulation 140-1, he could have enrolled in Army correspondence courses to earn the points necessary to be credited with a qualifying year. 5. Nevertheless, he is not entitled to have his record corrected to show he had 20 qualifying years of service for retired pay at age 60. To do so would be a disservice to those Soldiers who served the requisite period of service to be eligible for retired pay at age 60. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X___ ___X____ ___X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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. ABCMR Record of Proceedings (cont) AR20110012253 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110012253 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1