IN THE CASE OF: BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20150013420 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 IN THE CASE OF: BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20150013420 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. IN THE CASE OF: BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20150013420 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 a 15-year letter under the Temporary Early Retirement Authority (TERA) provisions or a 20-year letter so that he may retire from the U.S. Army Reserve (USAR) at the age of 60. 2. The applicant states according to his calculations he completed 15 years of active service and 5 years of inactive Reserve service. He earned 50 retirement points each retirement year from 1990 through 1999 to have his inactive service credited as qualifying service for retirement. However, he is missing some sign-in sheets and supporting documents showing he earned 50 retirement points each year. He was assigned to the Retired Reserve effective 19 July 1999 in accordance with Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), paragraph 6-2 (Orders and certificates); however, his eligibility for transfer to the Retired Reserve is in accordance with Army Regulation 140-10, paragraph 6-1 (Eligibility). 3. The applicant provides: * orders * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 214 (Report of Separation from Active Duty) * memorandum, subject: Release from Active Duty, issued by U.S. Total Army Personnel Command, Alexandria, VA, dated 9 January 1990 * DD Form 2656 (Data for Payment of Retired Personnel) * Standard Form 1199A (EG) (Direct Deposit Sign-Up Form) * email * DA Form 5500-R (Body Fat Content Worksheet (Male)) * DA Form 160-R (Application for Active Duty) * three travel vouchers * 22 Leave and Earnings Statements (LES) from June 1990 to March 1992 * Verification of Military Experience and Training * self-prepared calculation of military points * military service record from the National Personnel Records Center * 2 U.S. Army Reserve Personnel Command (ARPC) Forms 249-2-E * U.S. Army Human Resource Command (AHRC) Form 249-E * Invitation to a Pre-Retirement Briefing * Invitation to Apply for Recall to Active Duty * self-authored statement 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 Regular Army, the applicant was appointed as a Reserve commissioned officer on 13 May 1979. 3. On 9 January 1990, he was informed he was being released from active duty due to a second non-selection for promotion to the next higher grade. He was to be released from active duty no later than 1 July 1990. 4. He was released from active duty on 1 April 1990 and transferred to the United States Army Reserve (USAR) Control Group (Reinforcement). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 10 years, 10 months, and 3 days of net active service this period and he received $30,000 separation pay. 5. His record contains no evidence nor does he provide evidence that shows he sustained an injury or was diagnosed with an illness of such severity that it rendered him unable to perform the duties commensurate with his grade and military occupational specialty, thereby warranting his entry into the Physical Disability Evaluation System (PDES) while he was in the USAR. 6. He was released from the USAR Control Group (Reinforcement) and assigned to the Retired Reserve effective 19 July 1999. 7. His record is void of a notification of eligibility for retired pay at age 60 (15 or 20-year letter). 8. He provides a DD Form 2656 (Data for Payment of Retired Personnel), dated 12 May 2015. 9. In response to his request for retired pay, he submitted a memorandum from the Army Human Resources Command (HRC) dated 25 June 2015 that stated, in pertinent part: a. To be eligible for retired pay at age 60, under Title 10, U.S. Code, sections 12731-12737, a Reserve Soldier or former Reserve Soldier must have completed a minimum of 20 qualifying years of service, the last 8 years in a Reserve Component. Service in an inactive Reserve section, such as the Retired Reserve, is not creditable for retirement purposes. b. Since 1 July 1949, a Reserve Soldier must have earned at least 50 retirement points per year for that service to be creditable for retirement. An audit of his military record showed he completed 15 years and 2 days of qualifying service for retirement. Accordingly, he was ineligible for retired pay. 10. He provides a self-made spreadsheet outlining training he completed during his inactive period of service; however, he has not included any DA Forms 1380 (Record of Individual Performance of Reserve Duty Training) used to record inactive duty training by non-unit Soldiers performing other inactive duty training for retirement point credit. 11. His AHRC Form 249-E, dated 26 June 2015, shows he was credited with 15 years and 2 days of service for non-regular retirement. This statement does not indicate he was credited with any inactive duty points. 12. On 23 June 2016, the Chief, Reserve Component Retirements (RCR) Branch, rendered an advisory opinion. It stated in part: a. The RCR Branch reviewed the applicant's military records and determined he had 15 years and 2 days of qualifying time. To be eligible for retired pay at age 60, under Title 10, U.S. Code, sections 12731-12737, a Reserve Soldier or former Reserve Soldier must have completed 20 qualifying years of service. To be eligible for a 15 year retirement, a Soldier must be medically retired or serving in a unit that was being downsized or relocated at the time of retirement. b. The applicant did not qualify for a 15 or 20 year retirement based on governing regulations. The applicant had the opportunity to be placed in a Reserve unit where he could continue earning points and accumulate qualifying years; however, he chose to be placed in the Retired Reserve and collect separation pay. 13. On 3 October 2016, the applicant responded to the advisory opinion. He stated: a. When he talked to Ms. H from the Army RCR Branch 2 years before his 60th birthday, she did not tell him that he was ineligible for military retirement. She explained how difficult and time consuming it would be to build his records and update his AHRC Form 249-E for his 20 year letter. His conversation with her ended when he told her to take her time and build his record. He was shocked to receive the Army RCR Branch letter a month later explaining that he was not eligible for military retirement. b. He disagrees with the RCR Branch opinion advising that he chose to be placed in the Retired Reserve and collect separation pay. From 1990 to 1999, he went on many 2 week annual active duty assignments and held an IMA assignment at Fort Benjamin Harrison, Indiana, until his position was relocated. He became inactive in 1995. During this period he drilled for points only in order to earn the 50 points required for a good year. In 2014, his severance pay was paid back in full to the government. c. Title 10, U.S. Code, section 12731, grants retirement authority to Vietnam Era veterans and a special 15 year temporary retirement during the period of 21 July 1999, when he was transferred to the Retired Reserve. All correspondence from the Army since 1999 and Army Knowledge Online considered his status as retired military. On 26 January 2013, he was invited by the Army Reserve to attend a Pre-Retirement Benefits Seminar at Fort Belvoir, Virginia. d. In reference to Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service), he meets the basic qualifying service requirement for a 15 or 20 year retirement. During the period 1990 through 1999, he fell short in transferring his source documents to the Army Human Resources Branch to update his AHRC Form 249-E. Since graduating from high school, the Army has been his total way of life and he has often put his military duty before his family. He was not retired in error; he was retired in faithful service to his country. REFERENCES: 1. Army Regulation 135-180 implements statutory authorities governing the granting of "retired pay" to Soldiers and former RC Soldiers. Chapter 2 provides eligibility criteria and, in pertinent part, states that in order to qualify for non-regular retirement, a member must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 8 years of his or her qualifying service as a RC Soldier. Paragraph 2-8 defines qualifying service and states, in pertinent part, that a RC Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. 2. Public Law 103-337, dated 5 October 1994, established eligibility for early Reserve retirement for Soldiers involuntarily separated from the Selected Reserve due to physical disability during the period 5 October 1994 through 30 September 1999 (later extended through 30 September 2001). Eligibility is based on a minimum of 15 years of qualifying service toward RC retirement. 3. Title 10, USC, section 12731b, effective 5 October 1999, provides a special rule for members with physical disabilities not incurred in the line of duty. It states that in the case of a member of the Selected Reserve of an RC who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability (emphasis added), the Secretary concerned may, for the purpose of section 12731 of this title, determine to treat the member as having met the service requirement and provide the member with notification required if the member completed at least 15 but less than 20 years of qualifying service for retirement purposes. This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC. 4. Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers. Retirement points may be earned by USAR Soldiers for active duty (AD), or while in an active Reserve status, for active duty for training (ADT), initial active duty for training (IADT), involuntary active duty for training (involuntary ADT), annual training (AT), inactive duty training (IDT), Reserve membership, and for other specified activities. Annual or terminal statements of retirement points tell the Soldier whether he had earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status. It also gives the Soldier an annual opportunity to request correction of errors in their statement. A DA Form 1380 is used to record inactive duty training by non-unit Soldiers performing other inactive duty training for retirement point credit. The authorization for the training reported on DA Form 1380 must be entered in item 10 to include approving Headquarters and date of approval. 5. Army Regulation 140-10, paragraph 6-1 provides that assignment to the Retired Reserve is authorized provides that eligible Soldiers request it. Paragraph 6-2, provides that orders transferring Soldiers to the Retired Reserve will cite this paragraph and state the reason for transfer. DISCUSSION: 1. In reference to his request for a 20-year letter, by law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement at age 60. A qualifying year of service for non-regular retired pay is a full year during which a Regular or Reserve member is credited with a minimum of 50 retirement points. 2. He provides a self-made spreadsheet outlining training he completed during his inactive period of service; however, he has not included any DA Forms 1380 used to record inactive duty training by non-unit Soldiers performing other inactive duty training for retirement point credit. 3. After calculating his retirement points, HRC determined he had completed 15 years and 2 days of qualifying years of service. If he still believes his retirement points are improperly calculated, he may request HRC conduct an audit of his retirement points by providing the supporting evidence of the missing points, such as DA Form 1380 (Record of Individual Performance of Reserve Duty Training), DA Form 1379 (U.S. Army RC Unit Record of Reserve Training), LES’, DD Form 214, Commander's Certification, or other documentary evidence that validates or confirms the missing points. 4. In reference to his request for a 15 year letter, the law authorizes those RC members who have completed at least 15 and less than 20 years of service computed under the law who are involuntarily separated due to unit inactivation or reorganization (or due to medical disqualification), between 23 October 1992 and ending on 31 December 2001, to retire early. 5. The applicant's last order, dated 21 July 1999, shows he was transferred from the USAR Control Group (Reinforcement) to the Retired Reserve on 19 July 1999. He was reassigned to the Retired Reserve due to non-selection for promotion and not because of physical disability or loss of a valid unit position due to unit inactivation, reorganization, or relocation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013420 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013420 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2