BOARD DATE: 15 December 2016 DOCKET NUMBER: AR20150011871 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _____X___ ____X____ ___X_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 15 December 2016 DOCKET NUMBER: AR20150011871 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 15 December 2016 DOCKET NUMBER: AR20150011871 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 her records to show she was transferred to the Retired Reserve on or about 27 February 2006 instead of 19 September 2006. 2. The applicant states: a. She was serving with the Puerto Rico Army National Guard (PRARNG) and was assigned to the 840th Maintenance Company in Juana Diaz, PR. During her last drill weekend in February 2006, she let her chain of command know that she needed and wanted to retire, since she had completed the required period of service. Her request for retirement was based on her pending relocation in May 2006 to Modesto, CA, so she could be with her husband, who was employed with the Department of Homeland Security/Federal Emergency Management Agency at Moffett Field, Mountain View, CA. b. She let her chain of command know that that weekend would be her last drill weekend. She did not participate in any other military drills or military activity of any sort after that date and she was informed that there would be no problem with that. However, for whatever reason, her retirement orders were not cut until 12 October 2006, with a 19 September 2006 effective date, which was 7 months after the date she had initially requested. c. This 7-month gap creates the false perception that she was noncompliant in paying her insurance dues for that time. Consequently, she is in jeopardy of being disqualified from received educational benefits under the PR National Guard Tuition Assistance Fund (FIGNA), which is not fair since she was neither actively participating in the PRARNG nor living in PR after May 2006. d. Her record shows she was noncompliant in paying her insurance dues, which could negatively influence, impact, and potentially disqualify her from receiving FIGNA benefits since the record, as it stands, leaves the false impression that she didn't pay insurance dues between February and September 2006. 3. The applicant provides a self-authored statement; Orders 285-505, issued by the Puerto Rico Army National Guard (PRARNG) on 12 October 2006; and a copy of her State of California Driver License. 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 enlisted in the PRARNG on 28 June 1981. She was promoted to the rank/grade of specialist/E-4 on 30 December 1984 and was honorably separated on 1 September 1990. She served in the U.S. Army Reserve (USAR) from 2 September 1990 through 11 May 1993. 3. The applicant reenlisted in the PRARNG on 12 May 1993. 4. The applicant was issued her Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) on 2 May 2005. 5. Orders 5-1, issued by the PRARNG on 10 May 2005, released her from assignment to the 840th Maintenance Company and reassigned her to Headquarters and Headquarters Detachment, 292nd Combat Support Battalion, effective 10 May 2005. 6. Orders 285-505, issued by the PRARNG on 12 October 2006, discharged her from the ARNG effective 19 September 2006 and assigned her to the USAR Control Group (Retired Reserve) the following day. 7. The applicant's record is void of a retirement application, any documentation that shows she requested retirement or transfer to the Retired Reserve in February 2006, or any documentation that shows she was granted excused absences pending the processing of a retirement application. 8. In the processing of this case, advisory opinions were provided by the Office of the Deputy Chief of Staff, G-1, PRARNG and the Deputy Chief, Personnel Policy Division, National Guard Bureau (NGB). Both officials recommended disapproval of the applicant's request for relief. a. The PRARNG G-1 noted: (1) After reviewing the ABCMR case, the following documents are missing from the Soldier's military record. In accordance with Army Regulation 135-178 (ARNG and Army Reserve – Enlisted Administrative Separations), in order to complete the discharge/separation transaction, the following items must be processed: (a) Paragraph 1-7 establishes that a DA Form 5138 (Separation Action Control Sheet) must be initiated to ensure compliance with regulatory guidance prior to forwarding the separation action to the approval authority. Commanders initiating separation actions under the notification procedure or the administrative board procedure will initiate, maintain, and file DA Form 5138. This document is missing from the Soldier's record. (b) There is no evidence on record of a DA Form 4187 (Personnel Action) or Soldier's letter requesting discharge from the PRARNG and transfer to the Retired Reserve, effective February 2006 as stated on her DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552). (c) There is no evidence on record of notification of separation proceedings or a document from the unit commander acknowledging the Soldier's intent to separate (i.e. DA Form 4856 (Developmental Counseling Form) or Commander's Report to The Adjutant General (TAG)). (2) The Soldier stated on her DD Form 149 that she was requesting separation due to her relocation of residence. In accordance with Army Regulation 135-91 (ARNG and Army Reserve – Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), paragraph 4-19, a notice of intended relocation should be sent to the unit commander in writing as far in advance of departure as possible. The notice should include the new address (if known) and evidence that a relocation of residence is in fact to be made. The Soldier's record contains no notice of intended relocation (i.e. utilities invoice with Soldier's name). (3) A written memorandum or DA Form 4187 is required for ARNG members requesting voluntary transfer to the Retired Reserve, in accordance with Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers) and Army Regulation 135-178. The final approval authority for voluntary separations with a pending service obligation is the PRARNG TAG. (4) Soldiers are required to attend drills under their last contractual agreement as documented on their DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), from the date of their request for retirement until the date the TAG approves their request. Exceptions for drill attendance are applicable upon a commander's approval of a 90-day leave of absence period, in accordance with Army Regulation 135-91, paragraph 4-20c. (5) The Soldier was discharged from the PRARNG in September 2006, and not in February 2006 as stated on her DD Form 149. The separation package was never submitted through the chain of command for TAG approval and the Soldier was in a long-term NOVAL pay status. The State published a separation order for retirement in September 2006, taking into consideration not the unsatisfactory participation but the Soldier's eligibility for retirement pay as the most favorable separation. (6) Without the proper documentation, they [the PRARNG] cannot determine the timeline when the separation package was submitted for TAG approval or when the Soldier requested the separation in writing. (7) If the Soldier has in her possession evidence that can clarify the points mentioned above, they [the PRARNG] will proceed to analyze and take appropriate actions if required. b. The Deputy Chief, Personnel Policy Division, NGB noted: (1) The Soldiers requests her retirement date be adjusted to 27 February 2006. (2) The NGB recommends disapproval of her request. (a) On or about 27 February 2006, SPC [Applicant] informally requested retirement through her chain of command. According to the PRARNG, no record exists within the Soldier's official record or the unit's records, requesting such action. Notwithstanding, SPC [Applicant] should have officially requested her retirement prior to her departure to California, in accordance with Army Regulation 140-10, paragraph 6-1. Additionally, specific administrative procedures would have been initiated to validate that the Soldier had met all requirements to retire prior to approval, as well as establish the Soldier's retirement account prior to being transferred into the Retired Reserve to ensure retirement pay at age 60. On 19 September 2006, SPC [Applicant] was transferred to the Retired Reserve. (b) In light of the Soldier's request, our office recommends disapproval. During this time, SPC [Applicant] was still a member of the PRARNG without an approved retirement. Additionally, the PRARNG took into consideration the Soldier's unsatisfactory participation between February through September 2006 and deemed eligibility to retirement pay as the favorable separation, vice administrative separation. 9. The applicant was provided the advisory opinions on 1 December 2016, for information, review, and possible rebuttal, and asked to respond in writing with any comments related to the opinions; however, she did not respond. REFERENCES: 1. Army Regulation 135-91 defines Army National Guard of the United States (ARNGUS) and USAR service obligations and prescribes policy, standards, and procedures governing the various types of service obligations and participation requirements. a. Paragraph 4-2 (Authority) provides that the unit commander or acting commander is authorized to excuse absences and authorize equivalent training. State adjutants general (for ARNGUS) and general officer commanders (for USAR) are authorized to grant exceptions to unexcused absences. b. Paragraph 4-19 (Notice of Relocation) provides that a notice of intended relocation should be sent to the unit commander in writing as far in advance of departure as possible. The notice should include the new address (if known) and evidence that a relocation of residence is in fact to be made. Procedures to follow on change of address depend on advance notice of relocation, area of relocation, and availability of units in the relocated area. ARNG and USAR Soldiers who give notice of relocation will be transferred/reassigned to the area of their new address. Soldiers who fail to give notice of relocation and Soldiers who cannot be transferred/reassigned per paragraph 4–20 will be given a 90–day leave of absence letter. 2. Army Regulation 135-178 establishes policy, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of ARNGUS and USAR enlisted Soldiers for a variety of reasons. 3. Army Regulation 140-10 establishes policy, standards, and procedures for assigning, attaching, removing, and transferring USAR Soldiers and defines Ready Reserve Control Groups and the Selected Reserve. Paragraph 6-1 (Eligibility) provides that assignment to the Retired Reserve is authorized, upon application, for Soldiers who have completed a total of 20 years of active or inactive service in the U.S. Armed forces. DISCUSSION: 1. The applicant's request for correction of her records to show she was transferred to the Retired Reserve on or about 27 February 2006, instead of 19 September 2006, was carefully considered. 2. The evidence or record shows the applicant was discharged from the ARNG effective 19 September 2006 and assigned her to the USAR Control Group (Retired Reserve) the following day. 3. The applicant contends she informed her chain of command in February 2006 that she would be retiring and would no longer attend drill. Consequently, she feels she should have been transferred to the Retired Reserve in February 2006 versus September 2006. 4. The applicant's record is void of a retirement application, any documentation that shows she requested retirement or transfer to the Retired Reserve in February 2006, or any documentation that shows she was granted excused absences pending the processing of a retirement application. 5. The advisory opinion provided by the PRARNG suggests the applicant failed to submit a proper application for discharge from the ARNG and transfer to the Retired Reserve. Further, the advisory opinion suggests she was being processed as an unsatisfactory participant; however, the PRARNG opted to publish her separation order for retirement effective September 2006, taking into consideration not the unsatisfactory participation but the eligibility for retired pay as the most favorable separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013750 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011871 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2