BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017326 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 April 2017 DOCKET NUMBER: AR20150017326 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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: * redistributing 35 of the applicant's excess RC retirement points to the retirement year ending 29 December 1991 to 28 December 1992 to provide him with a full qualifying year of service for this retirement year * issuing him a 20-year letter, if applicable, showing he is entitled to Reserve retired pay at age 60 as a result of the above correction * placing him on the retired list effective his 60th birthdate with entitlement to back retired pay * providing him the opportunity to enroll or decline enrollment in the Survivor Benefit Plan/Reserve Component Survivor Benefit Plan _____________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 April 2017 DOCKET NUMBER: AR20150017326 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, in effect, correction of his records to show he qualified for non-regular retirement. 2. The applicant states his retirement record shows he completed 19 years, 6 months, and 28 days of qualifying service for non-regular retirement. It should show 20 qualifying years. He never received a 20-Year Letter from the Army upon his discharge. He requested his records from the Army but his records did not contain a 20-Year Letter. 3. The applicant provides: * DD Form 108 (Application for Retired Pay Benefits) * DD Form 2656 (Data for Payment of Retired Personnel) * ARPC Form 249-E (Chronological Statement of Retirement Points) * Direct Deposit Sign-Up Form * Discharge orders, dated 10 April 1995 * Letter from the U.S. Army Human Resources Command (HRC) CONSIDERATION OF EVIDENCE: 1. The applicant was born in June 1952. He turned 60 years of age in June 2012. https://arbaacts.hqda.ds.army.mil/Case 2. He enlisted in the Regular Army (RA) on 31 May 1972. He was honorably discharged on 24 March 1975 to reenlist. 3. He reenlisted in the RA on 24 March 1975 for 3 years. He was again honorably discharged on 28 December 1977 to reenlist. 4. He reenlisted in the RA on 29 December 1977 for a period of 3 years and he reenlisted again on 29 September 1980 for another 3-year period. 5. He was honorably discharged on 28 December 1983. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 6 years of active service during this period and he had 5 years, 6 months, and 28 days of prior active service. 6. On 27 December 1983 he enlisted in the U.S. Army Reserve (USAR) for 3 years and reenlisted in the USAR for 6 years on 5 October 1986. 7. Between February 1984 and September 1987, he was assigned to a troop program unit (TPU), the 328th Signal Company, Clemson, SC, and between September 1987 and December 1990, he was assigned to another TPU, the 324th Signal Company, also in Clemson, SC. 8. Beginning in mid-November 1991, he had a series of unexcused absences. His records contain multiple letters informing him of his unexcused absences. On 25 November 1991 (4 absences), 4 December 1991 (1 absence), 16 December 1991 (4 absences), and 27 January 1992 (4 absences), by certified/registered mail, the applicant's immediate commander notified him that he was absent from the scheduled unit training assemblies or multiple training assemblies for the scheduled period. In each letter, he was advised that he had accrued a certain number of unexcused absences and that an accumulation of nine unexcused absences within 1 year would define him as an unsatisfactory participant. In each case, he was also provided an opportunity to explain and/or provide justification for the unexcused periods. The certified mail receipts show the applicant received and accepted delivery of these letters but he failed to respond. He accrued more than nine unexcused absences within 1 year. 9. It appears following his unsatisfactory participation, his chain of command reassigned him from his TPU to the USAR Control Group (Reinforcement). 10. On 10 April 1995, Headquarters, USAR Reserve Personnel Center, St. Louis, MO, published Orders D-04-532889 ordering his honorable discharge from the USAR Control Group (Reinforcement) effective 10 April 1995, in accordance with Army Regulation (AR) 135-178 (Army National Guard and USAR Enlisted Administrative Separations). 11. His most recent/updated DA Form 5016 (Chronological Statement of Retirement Points) (formerly known as ARPC or AHRC Form 249) shows he completed 19 years, 6 months, and 28 days of qualifying service for non-regular retirement. A breakdown of his retirement points shows: FROM TO Component Points QUAL YEAR 19941229 19950410 USARA 00 00/00/00 19931229 19941228 USAR 15 00/00/00 19921229 19931228 USAR 15 00/00/00 19911229 19921228 USAR 15 00/00/00 19901229 19911228 USAR 71 01/00/00 19891229 19901228 USAR 74 01/00/00 19881229 19891228 USAR 75 01/00/00 19871229 19881228 USAR 75 01/00/00 19861229 19871228 USAR 77 01/00/00 19851229 19861228 USAR 76 01/00/00 19841229 19851228 USAR 71 01/00/00 19831229 19841228 USAR 74 01/00/00 19830531 19841228 RA 212 00/00/00 19820531 19830530 RA 365 01/00/00 19810531 19820530 RA 365 01/00/00 19720531 19730530 RA 365 01/00/00 TOTAL 4,354 19/06/28 12. On 20 June 2012, the applicant submitted an application for retired pay at age 60. He also provided a DD Form 2656 and a Direct Deposit form. 13. On 17 July 2013, HRC denied his request. An HRC official stated: a. Eligibility requirements for retired pay benefits based on non-regular retirement or Reserve Component (RC) Military Service is set forth in sections 12731 through 12736 of Title 10, U.S. Code. Members and former members of the RC that are authorized retired pay at age 60 must have completed a minimum of 20 qualifying years of service. After 1 July 1949, a RC Soldier must have earned at least 50 retirement points per year for that service to be creditable for retirement. b. His application was denied because he did not have 20 qualifying years of service. He completed 19 years, 6 months, and 28 days of qualifying service for retirement as shown on his chronological record of military service. He was ineligible to receive retired pay and his application was returned without action. He was referred to the Army Board for Correction of Military Records. REFERENCES: 1. Title 10, U.S. Code, sections 12731 through 12740 authorize retired pay for RC military service. Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60. Section 12731 states a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person has attained the eligibility age applicable under the appropriate subsection and has performed at least 20 years of service computed under section 12732 of this title. 2. Department of Defense Instruction (DODI) 1215.7 (Service Credit for Reserve Retirement), paragraph 6.1.5.2. states that when, as a result of a break-in-service, a partial year occurs, the Service member must meet the minimum retirement point requirement set out in this Instruction for the member's service to be credited as a partial year towards a qualifying year. A partial qualifying year is any period less than 12 full months in which the retirement points credited to a member, when computed proportionally, are equal to or greater than 50 points. 3. Army Regulation 135-180 (Retirement for Non-Regular Service) prescribes policies and procedures governing non-regular retirement. After 30 June 1949, a Reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. Only Soldiers assigned to an active status in a RC or individuals in active Federal service are authorized to earn retirement point credits. When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service. 4. Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Record) sets responsibilities and procedures to retirement records prescribing the types of training and activities for which retirement points are authorized. The criteria for establishing the service requirement for a satisfactory year of service for non-regular retirement per DODI 1215.07 and changing the anniversary year ending date are as follows: a. The full-year periods used for the crediting of qualifying years for non-regular retirement must be based on the anniversary years. Anniversary year periods are calculated from an anniversary date. The anniversary date is the date the service member entered into active service or active status in a RC. b. The month and day for each successive anniversary year will not be adjusted unless the service member has a break in service. A break in service occurs only when a member transfers to an inactive status list, the inactive National Guard, a temporary disability retired list, the Retired Reserve, or is discharged for longer than 24 hours. There will not be a break in service if the service member transfers directly to another active component or RC. When a service member with a break in service returns to an active Reserve status or to active service, the revised anniversary year start date will be the date of return or reentry. 4. Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: * Option A, elect to decline enrollment and choose at age 60 whether to start SBP participation * Option B, elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60th birthday * Option C, elect that a beneficiary receive an annuity immediately upon their death if before age 60; if death occurs before age 60, the RCSBP costs for options B and C are deducted from the annuity. DISCUSSION: 1. The applicant previously served in the RA from 31 May 1972 to 28 December 1983, completing 11 years, 6 months, and 28 days of active service. Because he entered active duty in May 1972, his anniversary year or Retirement Year Ending (RYE) was May of each year. 2. On 29 December 1983 he enlisted in the USAR with no break in service. At the time of his USAR enlistment, his RYE was reestablished as December because he enlisted in the RC in December per regulations in effect at the time. 3. From the applicant it appears he thought he completed 20 years of qualifying service because he completed nearly 12 years in the RA and had 8 good years in the RC as shown on his Chronological Statement of Retirement Points. This could explain his non-participation in his USAR unit after December 1991. Between his enlistment periods in the RC from December 1983 to December 1991, he not only met the minimum 50 qualifying points in each of his 8 good years, but exceeded those as well. 4. Based on his honorable service in the RA and in the RC, it seems apparent that if he had fully understood the retirement points system or if he had been counseled properly, he would not have neglected completing the appropriate number of qualifying years of service. Unfortunately, he was 35 retirement points short of reaching the required number of years. 5. The applicant earned in excess of 50 retirement points during all of his 8 years in the RC. From a pure equity standpoint, there is no harm to the Army or the Soldier if 35 excess points were redistributed from any of his "good" years to his RYE 29 December 1991 to 28 December 1992, which would credit him with 50 retirement points for that year and would make him eligible for a 20 year non-regular retirement. 6. The law requires completion of 20 qualifying years of service in order to be eligible for non-regular retirement at age 60. A retirement point redistribution could result in at least 20 qualifying years of service, which could lead to placing him on the retired list in the grade of E-5 on his 60th birthday. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017326 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017326 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2