IN THE CASE OF: BOARD DATE: 1 November 2016 DOCKET NUMBER: AR20150014067 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: 1 November 2016 DOCKET NUMBER: AR20150014067 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: 1 November 2016 DOCKET NUMBER: AR20150014067 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 his records to show he retired by reason of "sufficient service for retirement" instead of having been discharged due to "expiration of term of service." He also requests a personal hearing. 2. The applicant states: a. In 1987, he was stationed with the 19th Military Police (MP) Company at Fort Benning, GA. He held the position of Guard Commander at the Fort Benning Correctional Facility. In May 1987, he had a permanent medical profile and was informed by his company commander that he did not have to file an enlistment extension out to his projected retirement date [based on 20 years of active Federal service (AFS)] because he was going to be medically retired. His doctor also informed him that he would be medically retired. Based on the above information, he sold his house and his wife transferred her job with the Army and Air Forces Exchange Service (AAFES) to a job with the Navy Exchange in Orlando, FL. He moved his family to Orlando and enrolled his children in school. He stayed at Fort Benning to out-process. b. Two days before his expiration term of service (ETS) date, he was informed he would not be medically retired. He was told he could extend his enlistment to his normal [20 years of AFS] retirement date. As his family was in Orlando, he decided to leave the Army at or near his ETS date. He then enlisted in the U.S. Army Reserve (USAR) with the intent to earn enough retirement points to receive retired pay. c. He started receiving a Department of Veterans Affairs (VA) disability stipend upon his discharge from active duty. He was told his active duty service with the Ready Reserve would off-set his VA disability pay. His enlistment in the Ready Reserve was for 3 years. Many times he requested schools and active duty time, only to be turned down. He did not receive any discharge documents from the Ready Reserve. d. Through counsel with the VA, he was informed many Soldiers with less active duty time received retired pay. These retirements were 20 year retirements for the good of the service. It was suggested by his VA counselor and his Congressman, that he request a change of status [on his DD Form 214] to show retirement [for sufficient length of service] with entitlement to retired pay. 3. The applicant does not provide any additional evidence. 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 Regular Army (RA) on 30 July 1968 and was honorably discharged on 21 April 1970 for immediate reenlistment. He reenlisted on 22 April 1970. He held military occupational specialty 95C (Corrections Specialist). 3. He was honorably discharged on 6 November 1975. A DD Form 214 for both periods is not available for review. However, other documents show he completed 7 years, 3 months, and 7 days of active service. 4. He reenlisted on 7 November 1975. He was honorably discharged on 6 November 1978. He completed 3 years of active service during this period and he had 7 years, 3 months, and 7 days of prior active service, for a total of 10 years, 3 months, and 7 days. 5. He reenlisted in the RA for a 4-year term on 25 May 1979 and again for a 4-year term on 3 March 1983. At this point he had 14 years and 15 days of AFS. His ETS was established as 3 March 1987. He was assigned to Fort Benning, GA. 6. On 30 January 1987, he was reprimanded by the Commander, U.S. Army MP Activity, Fort Benning, GA, for multiple letters of indebtedness (at least 5 agencies/individuals), being evasive in payment of debts, and setting a poor example for his subordinates. He elected not to submit a rebuttal. The letter of reprimand was filed in his permanent service record. 7. On 9 February 1987, he submitted a request for retention on active duty beyond his ETS date to complete his medical board processing (recurrent shoulder dislocations). His chain of command recommended approval. He was ordered retained until completion of medical board processing. 8. On 2 July 1987, a formal physical evaluation board (PEB) convened at Fort Gordon, GA, with the applicant and his counsel present. (The applicant had previously elected not to concur with the 2 June 1987 finding of the informal board.) The PEB found the applicant physically fit to perform the duties of his office, grade, or rank in accordance with his physical profile and assignment limitations. The applicant non-concurred with the PEB decision. The Chief of Physical Disability approved the findings on 27 August 1987. 9. Meanwhile, following the applicant's reprimand, he was barred from reenlistment and he submitted a statement in connection with this bar. He stated: * he did not want to appeal the bar to reenlistment * he wanted immediate discharge from the Army * he would like his discharge to be on 31 July 1987 in order to provide him with enough time to arrange transportation of his household goods * he did not want to be retained on medical hold any longer and did not want to appeal the findings of the medical board 10. On 16 July 1987, Headquarters, U.S. Army Infantry Center, Fort Benning, GA, published orders ordering him to report for separation processing effective 31 July 1987. 11. He was honorably discharged on 31 July 1987. His DD Form 214 shows he completed 8 years, 2 months, and 6 days of active service during this period and he had 10 years, 3 months, and 7 days of prior service for a total of 18 years, 5 months, and 13 days of AFS. 12. On 1 August 1987, he executed a 3-year enlistment contract in the USAR. It appears he was a member of the Individual Ready Reserve and not an active participant in a troop program unit. Aside from membership points (15 points per year), he did not complete or earn any active duty, inactive duty points, or extension course points. His DA Form 5016 (Chronological Statement of Retirement Points) shows during the period from 1 August 1987 through 31 July 1995 he did not have 1 year of qualifying service for non-regular retirement (minimum 50 points per year). 13. He was honorably discharged from the USAR on 29 June 1995 by Orders D-06-553913 issued by the USAR Personnel Center. REFERENCES: Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) provides for the separation of enlisted personnel. Chapter 12 of the version in effect at the time provided for retirement for length of service. It stated a Soldier of the Regular Army, who has completed 20, but less than 30 years of AFS in the U.S. Armed Forces may, at the discretion of the Secretary of the Army, be retired at his or her request. The Soldier must have completed all required service obligations at the time of retirement. Upon retirement, the soldier is transferred to the USAR Control Group (Retired). He or she remains in that status until active service before retirement and the period served in the USAR Control Group (Retired) after retirement equals 30 years. He or she will perform active duty as prescribed by law. Soldiers of the Regular Army must be on active duty when they retire, per Title 10, U.S. Code (USC), sections 3914 and 3917. The years of service for retirement are computed by adding all AFS in the Armed Forces and service computed under Title 10, USC, section 3925. DISCUSSION: 1. The applicant did not complete at least 20 years of AFS in the U.S. Armed Forces. Therefore, by law he is not eligible for retirement due to length of service. 2. The applicant was on medical hold and applied for retention. His retention was approved contingent on completion of his medical board processing. A PEB found him fit for duty and retained him. Contrary to his contentions, there was no medical reason to separate him. 3. He was barred from reenlistment following his letter of reprimand. He was afforded an opportunity to rebut the reprimand but elected not to submit a statement. He further elected not to appeal his bar to reenlistment. Instead, he requested * immediate discharge from the Army * his discharge to be on 31 July 1987 in order to provide him with enough time to arrange transportation of his household goods * not to be retained on medical hold any longer * not to appeal the findings of the medical board 4. The available evidence does not indicate that an error or an injustice occurred in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014067 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014067 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2