IN THE CASE OF: BOARD DATE: 1 March 2016 DOCKET NUMBER: AR20140020944 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, in effect, correction to his record to show he is eligible for Reserve Component reduced age retirement from 13 July 2014 (his 60th birthdate) to 31 December 2013 (the day after his discharge from the Delaware Army National Guard (DEARNG). 2. The applicant states, in effect: a. Two errors/injustices occurred: (1) The U.S. Army Human Resources Command (HRC) failed to note he should have retired 6 1/2 months before his 60th birthdate under the provisions of the National Defense Authorization Act for Fiscal Year 2008 (NDAA FY2008). He was separated from the DEARNG on 31 December 2013 after completing more than 5 years on active duty service with the DEARNG. He states he is eligible for reduced retirement for Reserve Component Soldiers based on active duty service after 2008. (2) HRC incorrectly calculated his retirement date based on his age (60th birthdate) with the Defense Finance and Accounting Service (DFAS) paying him his retired pay effective this date. This is erroneous and he lost over $16,000 in retirement compensation as well as about $2,400 worth of benefits for which he had to pay out-of-pocket during the 6 months in question. b. The DEARNG personnel office submitted what they thought was a correct retirement packet showing a projected retired pay date of 31 December 2013 based on NDAA FY2008 (reduced retirement age). * when he retired from the DEARNG on 31 December 2013 he had served 32 years and 9 months * during his last 6 years of service, he spent 69 months in a full-time status with orders authorized under Title 32, section 502(f); he believes this service qualifies him for reduced retirement age * several months before retiring he met with DEARNG retirement personnel; they confirmed his request to retire early and assured him he would receive all benefits, to include medical and pension immediately upon his projected reduced age retirement (31 December 2013) * in February 2014 he contacted the DEARNG personnel office because he had not received his retired pay for January 2014 * he was told to be patient, as backlogs occur which sometimes take months to resolve and delays were being experienced as a result of the government shutdown * he called DFAS in March 2014, but was told they had no record of his retirement packet; he called back to the DEARNG who resubmitted his retirement packet * in May 2014, he contacted DFAS to see when he might start to receive his retired pay * DFAS told him he would have to wait several more months as he was an "early drop" (referring to his early retirement), and this would require someone to calculate his retired pay by hand * HRC sent retirement papers in early July showing he would be placed on the Retired List effective 13 July 2014 (his 60th birthdate) * he again contacted the DEARNG personnel office; the DEARNG personnel office contacted HRC in an effort to have the date corrected, but, after offering several solutions, HRC refused to make changes c. The applicant further states: * he supported overseas contingencies in Iraq and Afghanistan, while serving as commander of DE's Pre-Mobilization Training Assistance Element (PTAE) stateside * based upon those orders, he contends he accrued 5 years and 9 months which should have been counted towards an early retirement date * he believes this was authorized by a Personnel Policy Official Memorandum (PPOM) (while he does not identify which PPOM addressed his issue, it is likely to be PPOM # 13-029, dated 5 August 2013, issued by the National Guard Bureau (NGB), subject: Implementation Guidance for Reduced Retirement Age for ARNG Soldiers) 3. The applicant provides: * six orders showing the applicant was ordered to active duty (AD) from 26 December 2007 to 30 September 2013 * Orders 200-502, dated 19 July 2013, issued by the DEARNG * DD Form 214 (Certificate of Release or Discharge from AD) for the period ending 30 September 2013 * DFAS-CL 7220/148 (Retiree Account Statement) * three State of DE paystubs showing dollar amount of deductions for medical, dental, and vision care (amount paid should be doubled because he is paid twice monthly) * Orders C04-493306, dated 24 April 2014, issued by HRC * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) CONSIDERATION OF EVIDENCE: 1. The applicant was born on 13 July 1954. 2. After prior enlisted service in the DEARNG, he successfully completed the DEARNG officer candidate school. The applicant was commissioned as a second lieutenant in the DEARNG and executed his oath of office on 12 July 1986. His initial branch was Medical Service Corps and he later transferred to the Ordnance Corps. He served in a variety of positions and was promoted to the rank/grade of lieutenant colonel (LTC)/O-5. 3. The following orders were provided by the applicant showing he was ordered to AD in consecutive increments from 26 December 2007 to 30 September 2013: a. Orders Number 335-002, dated 1 December 2007, issued by the DEARNG, ordered the applicant to AD for special work (ADSW) for the period 26 December 2007 to 30 September 2008. The purpose was to serve as PTAE Chief. The authority shown is Title 32, U.S. Code (USC), section 502(f). The order does not specify his activation as being for purposes of responding to either a national emergency declared by the President or a national emergency supported by Federal funds. It does have a comment regarding training assistance to the State command cell for Operation Iraqi Freedom (OIF) Pre-Mobilization (Pre-Mob). b. Orders Number 267-002, dated 23 September 2008, issued by the DEARNG ordered him to ADSW for the period 1 October 2008 to 30 September 2009. The purpose was to provide command and control for PTAE/TA. The authority shown is Title 32, USC, section 502(f). The order does not specify his activation as being for purposes of responding to either a national emergency declared by the President or a national emergency supported by Federal funds. It contains the comment "Training Assist/Command Cell for OIF Pre-Mob." c. Orders Number 271-002, dated 28 September 2009, issued by the DEARNG, ordered him to Full-Time National Guard Duty Operational Support for the period 1 October 2009 to 30 September 2010. The purpose is shown as PTAE, officer-in-charge. The authority shown is Title 32, USC, section 502(f). The order does not specify his activation as being for purposes of responding to either a national emergency declared by the President or a national emergency supported by Federal funds. d. Orders Number 271-030, dated 28 September 2010, issued by the DEARNG, ordered him to AD for training (ADT) for the period 1 October 2010 to 30 September 2011. The purpose is shown as PTAE for critical skills monitoring. The authority shown is Title 32, USC, section 502(f). The order does not specify his activation as being for purposes of responding to either a national emergency declared by the President or a national emergency supported by Federal funds. It does contain a comment regarding Overseas Contingency Operations (OCO) PTAE critical skills. e. Orders Number 259-004, dated 16 September 2011, issued by the DEARNG, ordered him to ADT for the period 1 October 2011 to 30 September 2012. The purpose was shown as OCO PTAE Critical Skills. The authority shown is Title 32, USC, section 502(f). The order does not specify his activation as being for purposes of responding to either a national emergency declared by the President or a national emergency supported by Federal funds. It contains a comment stating the purpose as being for OCO PTAE critical skills. f. Orders Number 264-006, dated 20 September 2012, issued by the DEARNG, ordered him to ADT for the period 1 October 2012 to 30 September 2013. The purpose was shown as being for OCO PTAE critical skills. The authority shown is Title 32, USC, section 502(f). The order does not specify his activation was for purposes of responding to either a national emergency declared by the President or a national emergency supported by Federal funds. It contains the comment "OCO PRE-MOB TRNG ASST ELEM (PTAE) CRITICAL SKILLS." 4. On 30 September 2013, he was released from AD. His DD Form 214 shows he completed 4 years, 9 months, and 5 days of net active creditable service with 9 months and 5 days of prior active service, and 25 years, 9 months, and 29 days of prior inactive service. 5. Orders Number 200-502, dated 19 July 2013, issued by the DEARNG, shows he was honorably separated from the DEARNG and transferred to the Retired Reserve effective 31 December 2013. 6. Orders Number C04-493306, dated 24 April 2014, issued by HRC, shows he was placed on the Retired List in the rank of LTC effective 13 July 2014, his 60th birthdate. 7. His records contain officer evaluation reports (OERs) covering the period he was on AD. These OERs show principal duty title, significant duties and identify tasks completed. None of these OERS show tasks associated with or his direct deployment in support of OCO. a. Period 1 July 2007 through 30 March 2008, principal duty title: Surface Maintenance Branch - Branch Chief. He met the challenging operations tempo assisting with the modernization and maintenance of equipment. b. Period 31 March 2008 through 30 March 2009, principal duty title: Branch Chief. The senior rater comments stated the applicant executed the Pre-Mobilization Training Assistance Program in support of the Army Force Generation Model (ARFORGEN). c. Period 31 March 2009 through 30 March 2010, principal duty title: Defense Movement Coordinator. The senior rater comments stated the applicant was assigned to the G-4 Section as the Defense Movement Officer (Excess) and was formally detailed to serve an AD for Operational Support (ADOS) tour as the PTAE. His team got all DEARNG units to accomplish their pre-mob tasks safely and to full certification. d. Period 31 March 2010 through 30 March 2011, principal duty title: Defense Movement Coordinator. The senior rater comments stated the applicant supervised a team which trained, monitored, and coordinated the deployment of multiple units and individuals from the ARNG. e. Period 31 March 2011 through 30 March 2012, principal duty title: Defense Movement Coordinator. The senior rater comments stated the applicant supervised the PTAE within the State. He was responsible for coordinating and deploying every unit from the DEARNG over the past 3 years. f. Period 31 March 2012 through 30 March 2013, principal duty title: Training Division Chief. The senior rater comments stated the applicant supervised the PTAE unit members who monitored, guided, and certified pre-mobilization tasks of DEARNG deploying units. 8. In an advisory opinion, HRC stated the applicant was not, in their opinion, eligible for an early age drop. This opinion was based on: * an HRC memorandum, dated 14 June 2013, Subject: Reduced Retirement Age for Reserve Component (RC) Soldiers Based on Active Duty (AD) Performance * to be eligible, the law requires the service member to be called to AD by the President or the Secretary of Defense for the purpose of responding to a national emergency declared by the President or supported by Federal funds * the applicant's orders are shown as being for ADSW, Fulltime National Guard Duty Operational Support, ADT * the funding for these orders comes from the National Guard's budget and is individually provided to the State to support the requirements for the State ARNG 9. The applicant was provided a copy of this advisory opinion but offered no response. 10. HRC memorandum, dated 14 June 2013, Subject: Reduced Retirement Age for Reserve Component (RC) Soldiers Based on AD Performance, identifies the NDAA FY2008 as the source for this policy. It states: a. For qualifying service on or after 29 January 2008, each day on an AD tour could count toward a reduction in retirement age. b. Active service includes AD, as defined in the Department of Defense Instruction (DoDI) 1215.07 (Service Credit for Non-Regular Retirement), wherein full-time ARNG are called to AD by the governor and authorized by the President or the Secretary of Defense under section 502(f) [Title 32, USC], for the purpose of responding to a national emergency declared by the President or supported by Federal funds. c. A chart provides definitions, limitations, and examples of the applicable USC sections, to include section 502(f) of Title 32 eligible for reduced age retirement. It listed limitations and examples as follows: * limitations: called to AD by the governor and authorized by the President or Secretary of Defense * in time of national emergency declared by the President; or national emergency supported by Federal funds * Active Guard/Reserve (AGR) service under Title 32, section 502(f) is not applicable towards reduced age retirement * examples: * secure U.S. airports from terrorist * assist in the aftermath of hurricane Katrina * assist the Department of Homeland Security (DOHS) in securing Southwest borders of the U.S. * Support National Special Security Events as designated by DOHS, such as Summer Olympics or the G8 Summit 11. The NGB provided an advisory opinion, dated 4 December 2015, in which the official recommended disapproval of the applicant's request. a. Upon coordination with the DEARNG, it was determined the applicant was on Title 32, USC, section 502(f) orders, and he had been misinformed that his AD orders made him eligible for retirement at a reduced age. b. Further research revealed his orders did not specifically state "under a call to active service by a governor and authorized by the President or the Secretary of Defense under section 502(f) or 115 and 502(f) of Title 32, USC for purposes of responding to either a national emergency declared by the President or a national emergency supported by Federal funds." Based on this, the period he served on AD could not be counted towards reducing his retirement age. c. In addition to the foregoing, the official noted the applicant was never issued orders in response to a national emergency declared by the President. Rather, his AD service supported the State's mobilization process. His orders were State-specific orders issued for the purpose of preparing that State's Soldiers for mobilization. The funding issued for this purpose was sent to that State as part of their overall funding, and not for a single program or mission. Those funds were then distributed by that State, as needed, for training, maintaining, or readying the State's force. d. The DEARNG concurred with this advisory opinion. 12. The applicant was provided a copy of this advisory opinion, but did not respond. 13. Memorandum, dated 5 August 2013, issued by the NGB, Subject: Implementation Guidance for Reduced Retirement Age for ARNG Soldiers (PPOM# 13-029) provided guidance for implementation of a reduced retirement age for ARNG Soldiers under the provisions of NDAA FY2008. It rescinded a previous version dated 22 June 2009, but otherwise provided the same guidance shown in the above-cited HRC memorandum, to include the chart showing limitations and examples. 14. Army Regulation 135-180 (Retirement for Non-Regular Service), prescribes policy and procedures for Non-Regular retirement for Reserve Component Soldiers. It states, upon receipt of a DD Form 108 (Application for Retired Pay Benefits), HRC will determine the number of years of qualifying service for retirement. DISCUSSION AND CONCLUSIONS: 1. The applicant contends HRC erred when it did not place him on the Retired List on 31 December 2013. He bases this contention on his understanding of the eligibility requirements for Reserve Component early retirement as outlined in NDAA FY2008. He asserts his active service during the period 26 December 2007 to 30 September 2013 met the law's definition of qualifying service based on his AD service under Title 32, section 502(f). 2. The law limits eligibility to those periods of AD which are authorized by the President or Secretary of Defense during declared periods of a national emergency. Additionally, there is a requirement for the period of AD to be paid by Federal funds. a. As confirmed by the NGB, the applicant was ordered to AD and served continuously without a break in service of one day on five separate AD orders to perform ADSW, to provide Fulltime National Guard Duty Operational Support, and for ADT. Each of these statuses supported a State requirement, not contingency operations declared by the President or the Secretary of Defense. b. None of these periods of AD included a deployment by the applicant either in support of contingency operations or to support a State response to a declared national emergency. c. His periods of AD were funded by the State, not by Federal funds. 3. Although he was honorably separated from the DEARNG and transferred to the Retired Reserve on 31 December 2013, HRC is the final authority for determining when a Soldier has met the criteria for a reduced age non-regular retirement. As he did not meet the requirements for a reduced retirement age, he was placed on the Retired List and eligible for retired pay effective his 60th birthdate. There appears to be no error or injustice in HRC’s determination of his eligibility date for retired pay. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X_____ ____X____ ___X_____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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) AR20140020944 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140020944 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1