BOARD DATE: 28 March 2017 DOCKET NUMBER: AR20150016557 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: 28 March 2017 DOCKET NUMBER: AR20150016557 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: 28 March 2017 DOCKET NUMBER: AR20150016557 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 6 years of his U.S. Army Reserve (USAR) inactive service be counted as 3 years of active federal service allowing him entitlement to retired pay. 2. The applicant states he came into the military under a "grandfather clause” which he asserts should have given him 3 years of active duty for his reserve service. With this adjustment, he would have more than 19 years of active federal service, allowing him entitlement to retired pay. His service record shows: * USAR from 5 February 1963 through 30 December 1968 * U.S. Marine Corps (USMC) active federal service from 5 March 1969 through 9 September 1969 when he was discharged for hardship * Regular Army (RA) from 4 March 1970 through 12 September 1986 3. The applicant provides copies of two DD Forms 214 (Certificate of Release or Discharge from Active Duty) dated 28 March 1971 and 12 September 1986. 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's DA Form 2-1 (Personnel Qualification Record – Part II) lists the applicant's service as: * National Guard, January 1963 – February 1963 (20 days) * National Guard active duty, February 1963 – August 1963 (6 months) * USAR, 10 months, May 1963 – June 1964 * USAR active duty, June 1964 (15 days) * USAR, June 1964 – August 1965 (14 months) * USAR active duty, August 1965 (15 days) * USAR, August 1965 – December 1968 (16 months) * USMC active duty, March 1969 – August 1969 (7 months) * RA, 30 March 1970 through 12 September 1986 3. The applicant’s official military personnel file contains a DD Form 214 showing he enlisted in the USMC on 14 March 1969 and was honorably discharged on 30 September 1969. He completed 6 months and 17 days of active federal service. The reason for discharge shown on this DD Form 214 was hardship. 4. On March 30 1970 he enlisted in the RA. He served continuously until 28 March 1971 when he was honorably discharged for the purpose of immediate reenlistment in the RA. He was issued a DD Form 214 for this period of service showing he served 11 months and 29 days of active federal service with 6 years of inactive service. His total active federal service was 1 year, 5 months and 28 days. 5. On 29 March 1971 he reenlisted in the RA. He served continuously until 24 February 1975 when he was honorably discharged for the purpose of immediate reenlistment. He was issued a DD Form 214 for this period of service showing he served 3 years, 10 months, and 26 days of active federal service. His prior inactive service is shown as 5 years, 5 months, and 17 days. His total active federal service was 5 years, 5 months, and 24 days. 6. On 25 February 1975 he reenlisted in the RA. 7. On 29 March 1983 the applicant received a Department of the Army (DA) Qualitative Management Program bar to reenlistment. By letter, the applicant was informed of the DA decision based on a comprehensive review of his performance record and future potential for retention in the RA. The applicant appealed to DA. 8. On 29 September 1984, a military occupational specialty (MOS)/medical retention board (MMRB) concluded the applicant’s physical profile and its limitations were so prohibitive that retraining and reclassification into any other MOS was precluded. He was referred to a medical evaluation board. 9. On 11 January 1985 the applicant’s chain of command was informed he was unfit for further military service. His records (personnel and medical) were referred to a physical evaluation board (PEB). This letter contained instructions stating the applicant must remain available to the hospital until disability processing was completed. Therefore, any and all movement orders should be curtailed. His available personnel and medical records do not contain a final PEB decision. 10. On 19 August 1986 the applicant's appeal of his DA imposed bar to reenlistment was denied by the DA Enlistment Appeals Board. 11. On 12 September 1986 the applicant was honorably discharged based on his expiration of term of service. He was issued a DD Form 214 showing he served 11 years, 6 months, and 18 days of active federal service during this period. He had 5 years, 4 months, and 12 days of prior active service, thus his total active federal service was 16 years and 11 months. This same form shows he had 6 years of prior inactive service. The authority for his discharge was Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 4. His separation code was JBK and his reentry code was 4. 12. On 18 May 1988, the ABCMR denied the applicant's request to set aside the DA bar to reenlistment and change his reentry code. The applicant had requested retention in the RA so he could complete 20 years of active federal service for purposes of retirement eligibility. REFERENCES: 1. Army Regulation 600-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. It states that: a. To be eligible for a regular retirement (active duty retirement) a Soldier must have completed 20 or more years of active federal service and all other service obligations. b. Soldiers who are precluded from retention for any reason will not be retained beyond the last day of the month in which their expiration of time in service falls, or, if on indefinite status, they will not be retained beyond the last day of the month in which their retention control point (RCP) falls. c. Soldiers with less than 18 years of service who have DA bars to reenlistment or were selected for nonretention under the Qualitative Management Program are ineligible for retention or retirement. 2. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The "JBK" SPD code is the correct code for Soldiers separating under paragraph 4 of Army Regulation 635-200 by reason of expiration of term of service. 3. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and U.S. Army Reserve. It stated that individuals would be assigned reentry codes based on their service records or the reason for discharge prior to discharge or release from active duty. Appendix A (Nonwaivable Moral and Administrative Disqualifications) shows Soldiers who are barred from reenlisting by DA receive a reentry code of 4. Reentry code 4 applies to Soldiers separated from their last period of service with a nonwaivable reenlistment disqualification. 4. Army Regulation 135-180 (Retirement for Non-Regular Service) implements statutory authorities governing the granting of retired pay for non-regular service to Soldiers in the Army National Guard (ARNG), Army National Guard of the United States (ARNGUS) or the USAR. It provides that to be eligible for retired pay an individual must: a. have attained the minimum age of 60; b. have a minimum of 20 years of qualifying service computed under Title 10, U.S. Code, section 12732; and c. for Soldiers who completed the years of qualifying service before 5 October 1994, the last 8 years of qualifying service must have been in a component other than a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve. 5. Title 10, U.S. Code, section 12686a (Reserves on active duty within 2 years of retirement eligibility: imitation on release from active duty) states that under regulations to be prescribed by the Secretary concerned, which shall be as uniform as practicable, a member of a Reserve component who is on active duty (other than for training) and is within 2 years of becoming eligible for retired pay or retainer pay under a purely military retirement system (other than the retirement system under chapter 1223 of this title), may not be involuntarily released from that duty before he becomes eligible for that pay, unless the release is approved by the Secretary. 6. Title 10, U.S. Code, section 12732 (Entitlement to retired pay: computation of years of service) for the purpose of determining whether a person is entitled to retired pay under section 12731 of this title, the person’s years of service are computed as follows: a. Each one-year period, after 1 July 1949, in which the person has been credited with at least 50 points on the following basis: (1) One point for each day of active service; or full-time service under sections 316, 502, 503, 504, and 505 of Title 32 while performing annual training duty or while attending a prescribed course of instruction at a school designated as a service school by law or by the Secretary concerned; if that service conformed to required standards and qualifications. (2) One point for each attendance at a drill or period of equivalent instruction that was prescribed for that year by the Secretary concerned and conformed to the requirements prescribed by law, including attendance under section 502 of Title 32. (3) Points at the rate of 15 a year for membership – in a Reserve component of an armed force, in the Army or the Air Force without component, or in any other category covered by subsection (a)(1) except a regular component. b. Service in the National Guard shall be treated as if it were service in a Reserve component, if the person concerned was later appointed in the National Guard of the United States, the Army National Guard of the United States, the Air National Guard of the United States, or as a Reserve of the Army or the Air Force, and served continuously in the National Guard from the date of his Federal recognition to the date of that appointment. c. The following service may not be counted: service (other than active service) in an inactive section of the Organized Reserve Corps or of the Army Reserve, or in an inactive section of the officers’ section of the Air Force Reserve. Service in the inactive National Guard. Service in a non-federally recognized status in the National Guard. Service in the Fleet Reserve or the Fleet Marine Corps Reserve. DISCUSSION: 1. The only provision in law or regulation that allows a Soldier to combine regular and Reserve service for entitlement for retired pay at age 60 falls under the provisions of a non-regular (Reserve) retirement. In order for the applicant to have been eligible for this consideration he would have had to have served in an active reserve status (member of the USAR) for the last 8 years of his service based on the laws in effect at the time. As the applicant served in the Regular Army and was discharged upon his expiration of term of service based on a DA imposed bar to reenlistment, it is apparent he does not meet the qualification for consideration of a non-regular retirement. 2. Regarding his request to grant him 3 years of active federal service for his 6 years of inactive service, there is no provision in law or regulation allowing for reserve service (active or inactive) to be credited toward an active federal service retirement except for periods of extended active duty in a reserve status. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016557 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016557 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2