IN THE CASE OF: BOARD DATE: 19 November 2015 DOCKET NUMBER: AR20150003411 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 his discharge from the U.S. Army Reserve (USAR) be changed to show he was transferred to the Retired Reserve effective 14 August 2002. 2. The applicant states: a. He was honorably separated from the Colorado Army National Guard (COARNG) on 14 August 2002. He was subsequently transferred to the United States Army Reserve (USAR). He was informed by the U.S. Army Human Resources Command (AHRC) that the USAR discharged him from military service. b. The USAR did not transfer him to the Retired Reserve. He now has no military status and he is unable to enroll in Defense Enrollment Eligibility Reporting System (DEERS) or receive a grey area retirement identification (ID) card. He has completed over 20 years of creditable service. He wants to be transferred to the Retired Reserve effective 14 August 2002. c. He has been bounced between AHRC and the Army Board for Correction of Military Records for the last 8 months. He has over 20 years of creditable service and is entitled to retirement benefits as a grey area retiree and retirement pay upon reaching age 60. This is his second request. 3. The applicant provides his National Guard Bureau (NGB) Form 23A (ARNG Current Annual Statement) and orders. 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. After having prior enlisted service in the ARNG, he was appointed as a Reserve commissioned officer as a second lieutenant on 28 August 1990. 3. Records show he was born in 1958. He will reach 60 years of age in 2019. 4. An NGB Form 23A prepared on 27 February 2002, shows the applicant had completed 21 qualifying years for retired pay. He completed 20 years effective 28 August 2000. 5. His record is void of a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) and there is no indication that he received one. 6. Orders 241-022, issued by Department of Military Affairs, Englewood, CO, dated 29 August 2010, discharged the applicant from the ARNG and assigned him to the USAR Control Group Individual Ready Reserve (IRR), effective 14 August 2002, with an honorable characterization of service. 7. Orders D-02-505018, issued by AHRC, St. Louis, MO, dated 17 February 2005, discharged the applicant from the IRR with an honorable characterization of service. 8. On 15 April 2015, an advisory opinion was obtained from the NGB, Chief, Personnel Policy Division, who recommended disapproval of the applicant’s request. This official stated: a. On 29 August 1998, the applicant enlisted in the COARNG. b. On 14 August 2002, he was involuntarily separated from active service with the COARNG. He was then discharged from the COARNG and transferred to the IRR Reinforcement Group because he received $30,000 separation pay. There is a 3 year Ready Reserve obligation after the receipt of separation pay. c. Department of Defense Financial Management Regulation, Volume 7a, Chapter 35, section 350205C states: Repay Severance or Readjustment Pay. Notwithstanding subparagraphs 350205.A and 350205.B, members who received severance pay before 15 September 1981, and who on or after 15 September 1981, became eligible for retired or retainer pay under 10 U.S. C or14 U.S.C., are required to repay the severance or readjustment pay in accordance with the laws in effect on 14 September 1981. d. Title 10, USC 1174(e)(1)(A) states: As a condition of receiving separation pay under this section, a person otherwise eligible for that pay shall be required to enter into a written agreement with the Secretary concerned to serve in the Ready Reserve of a reserve component for a period of not less than 3 years following the person’s discharge or release from active duty. If the person has a service obligation under section 651 of this title or any other provision of law that is not completed at the time the person is discharged or released from active duty, the three year obligation under subsection shall begin on the day after the date on which the person completes the person’s obligation under such section or other provision of law. e. The applicant could have been transferred to the Retired Reserve (because he was issued a 20-year letter) or discharged from the service. This election should have been provided to the officer by the HRC at the time of separation. Through no fault of his own, the applicant was separated prior to the 3 year minimum service requirement (18 February 2005 instead of 15 August 2005). f. The applicant is eligible to apply for retired pay to HRC Fort Knox, KY at age 60 (December 2019). The Soldier will have to pay back the $30,000 separation payment upon receipt of retired pay. It will be collected by DFAS Cleveland, OH (Retired and Annuitant Pay) at a rate of 40 percent of the member’s retired pay until the gross amount of the separation pay is repaid in full. g. AR 600-8-14 and Armed Forces Instruction 36-3026 states that a former member (a Soldier who has been discharged completely from service but has eligibility for Non-Regular Retirement at age 60 and is not yet age 60), the Soldier is eligible for a DD Form 2 (Former Member) identification card. The status former member will be reflected above the Service shield on the card. This card entitles him to unlimited exchange and morale, welfare, and recreation (MWR) privileges and commissary access. If the Solder has dependents they are eligible for the DD Form 1173-1 with the same privileges. As age 60 and upon the receipt of retired pay, the Soldier and family will then be entitled to medical care, commissary, exchange and MWR privileges. h. Since the Soldier also joined the military prior to 8 September 1980, he falls under the final base pay retired pay system (10USC 1406). Under this retired pay system when the Soldier applies to HRC for retired pay at age 60, his retired pay will be calculated using the monthly basic pay determined at the rates applicable on the date when retired pay is granted. Unlike high 36 (10 USC 1407) he will not be penalized in the calculation of his retired pay for leaving control of the military (becoming discharged and a former member). i. The NGB Retirements Branch concurred with the recommendation. j. The COARNG did not provide any information for the case. 9. On 25 April 2015, the applicant respond to the advisory opinion. He stated: a. There was a factual error in paragraph 3(a) three of the advisory opinion. It stated that he enlisted in the COARNG on 29 August 1998; however, he was already a commissioned officer at that time serving on active duty for special work (ADSW) in the Counterdrug Program. Commissioned officers do not enlist, especially while serving in ADSW in a full time capacity. b. The date that the advisory listed as his entry date does not meet the common sense test. His NGB Form 23A1, dated 27 February 2002, clearly showed that he had served 20 years of creditable service and shows his enlistment date 29 August 1980. c. There was also a factual error in paragraph 3(b). The advisory opinion stated that he was involuntarily separated from active service. There are two definitions of the separation code LBK, they are: * Expiration of term of service * Involuntary discharge at end of obligated service d. As his service in the COARNG was that of an officer, he had no obligated service; therefore, he could not be involuntarily discharged. The advisory letter erred in its remark. The letter should be amended to reflect that his term of service expired. He was not involuntarily separated. The mistakes on the advisory opinion were not only incorrect, but also hurtful, embarrassing and harmful and should be corrected. 10. Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a indicates that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and, (3) served the last 8-years of his or her qualifying service as a Reserve Component (RC) Soldier. The requirement to serve the last 8 years in a RC has since been amended to the last 6-years, and on 26 April 2005, this requirement was reduced to zero (0) years. 11. Army Regulation 135-180 also specifies, in part, that each Reserve component Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service. 12. Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers. a. Chapter 6 states assignment to the Retired Reserve must be requested and is authorized if the eligible Soldier is entitled to receive retired pay from the U.S. Armed Forces because of prior military service or has completed a total of 20 years of active or inactive service in the U.S. Armed Forces. b. Chapter 7 relates to the removal of Soldiers from an active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve. DISCUSSION AND CONCLUSIONS: 1. At the time of his discharge he had 20 years of qualifying to receive retired pay upon application at age 60. 2. He attained 20 years of qualifying service as of 28 August 2000. Therefore, he should have been issued a 20-year letter by 28 August 2001. However, there is no indication that he was issued a 20-year letter. 3. There is also no evidence in the available records, and the applicant has provided none, to show that he requested transfer to the Retired Reserve. However, had the applicant been given a choice or the opportunity to request transfer to the Retired Reserve it is likely he would have done so in a timely manner. 4. Notwithstanding the advisory opinion, the applicant meets the eligibility requirements for assignment to the Retired Reserve. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____X____ ____X____ ___X_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records and ARNG records of the individual concerned be corrected by amending Orders 241-022, issued by Department of Military Affairs, Englewood, CO, dated 29 August 2010, to show he was transferred to the Retired Reserve on 15 August 2005 after completion of his 3-year Ready Reserve obligation. 2. The Board further determined that 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 transferring the applicant the Retired Reserve effective 14 August 2002. _______ _ _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) AR20150003411 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003411 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1