BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20150009650 BOARD VOTE: ___x______ __x_____ __x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20150009650 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 referring the applicant's records to the U.S. Army Human Resources Command (HRC) for recalculation of his service under Title 10, USC, section 1405, and if necessary, to amend his 2013 retirement orders. __________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. BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20150009650 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 to his retirement orders to show completion of 18 years, 6 months, and 5 days of service instead of 12 years, 10 months, and 14 days of service under section 1405 of Title 10, U.S. Code (USC). 2. The applicant states: * his Physical Evaluation Board Liaison Officer (PEBLO) miscalculated his years of service; she only used his ARNG service * his retirement orders were published incorrectly and only show his Army National Guard (ARNG) service * his Chronological Statement of Retirement Points from the USAR was not used in the computation * he should have a total of 18 years, 6 months, and 5 days under Title 10, USC, section 1405 * his Combat-Related Special Compensation (CRSC) is incorrectly computed; this is a serious error because it reduces his CRSC pay * he would like his correct years of service retirement computation used instead of his current 40 percent permanent retirement once the error is corrected * he wants his Title 10, USC, section1405 service corrected and then his new orders sent to Department of Defense (DOD), the Defense Finance and Accounting Service (DFAS), CRSC Office, and the Department of Veterans Affairs (VA) so his pay records can be updated * he requests entitlement to all back pay based on this correction 3. The applicant provides: * Letter from National Personnel Records Center * AHRC Form 249-E (Chronological Statement of Retirement Points) * Summary Points Inquiry/Update * NGB Form 23 (ARNG Current Annual Statement) * Retirement Frequently Asked Questions * PEBLO Notification of PEB Findings * PEBLO Estimated Disability Computation Worksheet * Retirement Orders * DD Form 214 (Certificate of Release or Discharge * DA Form 199-2 (Revised PEB Proceedings) * CRSC letter CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the ARNG on 20 September 1982 and held military occupational specialty 11B (Infantryman). He entered active duty for training (ADT) on 17 June 1983 and completed basic combat training. 2. He was released from ADT on 12 August 1983. He was issued a DD Form 220 (Active Duty Report) crediting him with 1 month and 26 days of active service. 3. He again entered ADT on 25 June 1984 and completed required training for award of an infantry specialty. He was honorably released from ADT on 9 August 1984. His DD Form 214 shows he completed 1 month and 15 days of active service. 4. He continued his inactive duty service in the ARNG. On 26 May 1985, he enlisted in the USAR as a cadet for 8 years and he also executed a Reserve Officers' Training Corps (ROTC) Program ROTC contract. On 30 May 1985, he signed an ARNG Simultaneous Membership Program Agreement. 5. He was honorably discharged from the ARNG and USAR on 9 May 1987. An NGB Form 22 (Report of Separation and Record of Service) for his enlisted ARNG service is not available for review. However, Orders 90-16 issued by the State of North Carolina ARNG on 12 May 1987 directing his discharge state: ?Individual’s military status during the period [from] 26 August 1985 – 9 May 1987 while participating in [Military Science (MS)] III and MS IV Phases of ROTC was not creditable for retirement purposes, longevity, accrual of retirement points, nor completion of reserve obligation.? 6. He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 10 May 1987. His ARNG officer initial appointment was 11 May 1987. He entered ADT on 18 June 1988 and completed the infantry officer basic course. He was honorably released from ADT on 7 October 1988. His DD Form 214 shows he completed 3 months and 20 days of active service during this period. 7. He entered active duty in support of Operation Enduring Freedom on 2 February 2002. He was honorably released from active duty on 23 September 2004. His DD Form 214 for this period shows he completed 1 year, 7 months, and 22 days of active service. 8. He was honorably separated from the ARNG on 31 July 2007 and transferred to the USAR Control Group (Reinforcement). His NGB Form 22 for this period of ARNG service shows he completed 20 years, 2 months, and 20 days of (commissioned) ARNG service and he had 4 years, 7 months, and 21 days of prior Reserve service. 9. He was then transferred to the 3rd Battalion, 321st Regiment, on 29 January 2008 and to the 1st Brigade, 98th Division on 30 December 2008. 10. He entered active duty as a member of the USAR on 13 February 2009. He later entered the disability evaluation system. On 15 July 2013, a PEB recommended his permanent retirement by reason of disability with a combined rating of 40 percent. He concurred. 11. On 24 June 2013, Headquarters, Joint Base Langley-Eustis published Orders 175-0006 retiring him effective 27 June 2013 and placing him on the retired list in the grade of major effective 28 June 2013. The orders show: * Statute authorizing retirement: [Title 10, USC, section] 1201 * Other eligible laws: [Title 10, USC, section] 1372 * Disability retirement: 9 years, 9 months, and 18 days * Section 1405: 12 years, 10 months, and 14 days * Basic Pay: 30 years, 9 months, and 8 days 12. He retired on 27 June 2013. His DD Form 214 for this period shows he completed 4 years, 4 months, and 15 days of active service and 5 years, 5 months, and 3 days of prior active service for a total of 9 years, 9months, and 18 days. It also shows he had 20 years, 11 months, and 20 days of prior inactive service. 13. An advisory opinion was received from the U.S. Army Human Resources Command (HRC) on 14 October 2015 in the processing of this case. An advisory official stated HRC reviewed the application submitted by the applicant regarding his request for recalculation of retirement points, and provides the following opinion: a. Recommend the Board direct the U.S. Army Physical Disability Agency to use the enclosed NGB Form 23B and AHRC Form 249 to recalculate his retirement points. b. Recommend the Board direct the U.S. Physical Disability Agency to amend his permanent physical disability orders with recalculated service for Title 10, USC, section 1405 time (Orders 175-0006, dated 24 June 2013, issued by U.S. Army Support Activity, Joint Base Langley-Eustis, Fort Eustis, VA). c. Recommend the Board grant full relief once his points have been recalculated and the orders amended allowing adjustment to his Title 10, USC, section 1405 service for permanent physical disability. d. HRC combined the applicant's two retirement point forms (NGB Form 23B and AHRC Form 249-E) and recalculated his retirements points. In turn, HRC issued a DA Form 5016 (Chronological Statement of Retirement Points), dated 22 September 2016, to show 1,040 inactive duty points, 3,673 active duty points, 5,062 total retirement points, and 29 years, 8 months, and 14 days of qualifying service for non-regular retirement. 14. The advisory opinion was forwarded to the applicant for review and comment. He responded on 30 September 2016 and concurred with it. He reviewed the recalculated statement that captured all of his military service and total amount of qualifying retirement service time as shown on DA Form 5016, dated 22 September 2016. He agrees with the advisory opinion that his retirement Orders 175-0006, dated 24 June 2013, for permanent physical disability should be amended to show the recalculated time in [Title 10, USC] section 1405. He accepts the new 22 September 2016 DA Form 5016 as accurately reflecting his combined service. He requests orders be published and sent to DFAS. REFERENCES: 1. Title 10, USC, section 1201 (Regulars and members on active duty for more than 30 days: retirement), states upon a determination by the Secretary concerned that a member described in subsection (c) is unfit to perform the duties of the member’s office, grade, rank, or rating because of physical disability incurred while entitled to basic pay or while absent as described in subsection (c)(3), the Secretary may retire the member, with retired pay computed under section 1401 of this title, if the Secretary also makes the determinations with respect to the member and that disability specified in subsection (b). Section c (2) is applicable for any other member of the armed forces entitled to basic pay who has been called or ordered to active duty (other than for training) for a period of more than 30 days. 2. Title 10, US Code, section 1372 (Grade on retirement for physical disability: Members of the armed forces), states unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of (1) the grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired; (2) the highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired; (3) the permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination; or (4) the temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination. 3. Title 10, USC, section 1405 (Years of Service), states in: a. For the purposes of the computation of the years of service of a member of the armed forces under a provision of this title providing for such computation to be made under this section, the years of service of the member are computed by adding (1) his years of active service; the years of service, not included in clause (1), with which he was entitled to be credited on 31 May 1958, in computing his basic pay; and (3) the years of service, not included in clause (1) or (2), with which he would be entitled to be credited under section 12733 of this title if he were entitled to retired pay under section 12731 of this title. b. Fractional years of service – in determining a member’s years of service under subsection (a), (1) each full month of service that is in addition to the number of full years of service creditable to the member shall be credited as 1/12 of a year; and (2) any remaining fractional part of a month shall be disregarded. DISCUSSION: 1. Title 10, USC, section 1405 service refers to inactive duty training (IDT) points creditable toward retired pay that a Reservist earned (normally prior to being ordered to continuous active duty service). In order to calculate 1405 service, a member needs to know two numbers – the member's total points for retired pay and the member's total active duty points. 2. These points are captured on the NGB Form 23B (ARNG Current Annual Statement) and/or AHRC Form 249-E (Chronological Statement of Retirement Points). Both forms, the NGB Form 23B and the AHRC Form 249-E, may be consolidated by HRC and recorded on a DA Form 5016 (Chronological Statement of Retirement Points). 3. The applicant's active duty service totaled 6 years, 7 months, and 8 days as follows: * 17 June 1983 to 12 August 1983: 1 month and 26 days * 25 June 1984 to 9 August 1984: 1 month and 15 days * 18 June 1988 to 7 October 1988: 3 months and 20 days * 2 February 2003 to 23 September 2004: 1 year, 7 months, and 22 days * 13 February 2009 to 27 June 2013: 4 years, 4 months, and 15 days 4. HRC recalculated the applicant's retirement points and produced a DA Form 5016 that shows 1,040 inactive duty points, 3,673 active duty points, 5,062 total retirement points, and 29 years, 8 months, and 14 days of qualifying service for non-regular retirement. 5. Based on this recalculation, it appears the applicant's Title 10, USC, section 1405 service may have been miscalculated. While it is premature to credit the applicant with the contended 18 years, 6 months, and 5 days of section 1405 service, his records should at least be referred to HRC for an accurate calculation of his section 1405 service and, if necessary, amendment of his retirement orders. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009650 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009650 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2