IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20160004976 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x___ ____x___ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20160004976 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief of providing sufficient retirement points for the retirement years indicated to make them good years for retirement and providing the related pay allowances as follows: a. 19980828-19990827, add 4 points for inactive duty for training. b. 19990828-20000827, add 14 points for active duty for training and 9 points for inactive duty for training. c. 20050828-20060827, add 14 points for active duty for training and 21 points for inactive duty for training. d. 20060828-20070827, add 14 points for active duty for training and 21 points for inactive duty for training. e. 20070828-20080827, add 14 points for active duty for training and 21 points for inactive duty for training. f. 20080828-20090827, add 14 points for active duty for training and 21 points for inactive duty for training. g. 20090828-20100827, add 14 points for active duty for training and 21 points for inactive duty for training. h. 20100828-20110827, add 14 points for active duty for training and 21 points for inactive duty for training. i. 20110828-20120827, add 14 points for active duty for training and 21 points for inactive duty for training. j. 20120828-20130827, add 14 points for active duty for training and 21 points for inactive duty for training. k. 20130828-20140827, add 14 points for active duty for training and 21 points for inactive duty for training. l. 20140828-20150827, add 14 points for active duty for training and 21 points for inactive duty for training. m. 20150828-20160827, add 14 points for active duty for training and 21 points for inactive duty for training. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to granting additional retirement points in excess of those granted in paragraph 1 above, changing to the applicant's rank on his 24 July 1993 discharge from the Washington Army National Guard, and awarding him a Special Operations Combat Diver Badge. _____________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 September 2016 DOCKET NUMBER: AR20160004976 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. A U.S. District Court for the District of Columbia civil action, dated 21 December 2015, remanded the Army Board for Correction of Military Records (ABCMR) case AR20130008506 to the ABCMR to specifically address three questions: a. what, if any, impact the prior ABCMR decision cited in footnote 11 of the applicant's request for reconsideration had on the ABCMR's decision not to award the applicant Reserve retirement points; and b. if the applicant's rank on his Washington Army National Guard discharge should be changed; and c. if the applicant should be awarded the Special Operations Combat Diver Badge. 2. Additional evidence was provided related to the court remand specific question “a” above consisting of analysis of 20 additional cases similar to those cited in footnote 11 in which the ABCMR granted retirement points sufficient to make good years toward retirement when the applicant was prevented from earning the requisite points due to an error or injustice. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel submitted a number of requests not related to the three specific questions remanded by the Court. The requests for a Purple Heart, Bronze Star for Valor and the Combat Medical Badge will be addressed in a separate case. With respect to the specific remand questions, the counsel requested: a. Showing that the applicant earned 50 retirement points and a creditable retirement year for each year from 6 October 1997 through 25 April 2000 and paying him all due pay and allowances for these inactive duty and active duty periods resulting from his unlawful and erroneous discharge from the California Army National Guard (CAARNG). b. Showing that the applicant earned 50 retirement points and a creditable retirement year for each year from 17January 2003 (date of incorrect personnel flagging action) through 3 July 2006 (date of antedated enlistment established by the ABCMR) and paying him all due pay and allowances for these inactive duty and active duty periods resulting from his unlawful and erroneous discharge from the U.S. Army Reserve (USAR). c. Showing that the applicant earned 50 retirement points and a creditable retirement year for each year from 3 July 2006 (date of antedated enlistment established by the ABCMR) to the present paying him all due pay and allowances for these inactive duty and active duty periods resulting from his unlawful and erroneous discharge from the USAR. 2. Counsel states, in effect, that the applicant is due retirement points sufficient to make good years toward non-regular retirement due to errors made by the Army that prevented the applicant from earning the requisite retirement points. The counsel also contends that the applicant is due back pay and allowances for these periods. 3. Counsel provides 20 prior ABCMR cases wherein, as a matter of justice and equity, sufficient retirement points with commensurate back pay and allowances were granted by the ABCMR when it was determined that applicants were denied the opportunity to earn sufficient retirement points due to error in discharges or separations. The 20 cases are: * AR2000043653 * AR20040010525 * AR2000044158 * AR2001061994 * AR20050002346 * AR20050016026 * AR20060009723 * AR20060009744 * AR20080013778 * AR20090004612 * AR20090004919 * AR20110019640 * AR20120002831 * AR20120003532 * AR20120020640 * AR20090016746 * AR1999028792 * AR20050004062 * AR1999028073 * AR20100009544 * AR2001053568 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130008506 on 21 May 2014. Only the specific questions remanded by the Court will be considered in this case. The additional issues raised by the applicant’s attorney will be addressed in a separate case. 2. In his application for case AR20130008506, the applicant referenced in footnote 11, four prior ABCMR decisions for other applicants wherein those applicants were granted retirement points to correct an error or injustice. The four cases are: AR1999028792, AR20040010525, AR20050002346, and AR20050017983. a. In case AR1999028792, the applicant performed active duty and inactive duty but there were retirement point accounting errors for the duty performed. The error was corrected by correctly applying the retirement points for the duty performed. b. In case AR20040010525, the applicant had achieved 21 years creditable service for retirement but due to an error in the calculation of his mandatory retirement date, he was inadvertently denied credit for inactive duty for a period of 25 months which was corrected as a matter of justice. c. In case AR20050002346, the applicant as a result of an error in promotion selection was incorrectly separated for non-selection. The error was corrected and the applicant was referred back to the selection board for reconsideration. No retirement points were considered. d. In case AR20050017983, the applicant had achieved 34 years creditable service for retirement but due to an error in promotion orders that further resulted in an error in his mandatory retirement date, he was denied inactive duty credit for a period of 1 year which was corrected as a matter of justice. 3. The counsel presented as evidence 20 similar cases wherein the ABCMR granted retirement points sufficient to make good years toward retirement with commensurate back pay and allowances. 4. Evidence shows his residence in 1988 as British Columbia, Canada. Numerous documents in his records covering several years thereafter show his address as British Columbia, Canada, as well his address at the time of this application to the Board. 5. The applicant, with prior active enlisted service in 1982-1983, and USAR (Individual Ready Reserve (IRR)) service from 1983-1994, was appointed as a CW2 in the WAARNG on 11 July 1994. 6. WAARNG Orders 268-06, dated 25 September 1995, discharged the applicant as a CW2 and appointed him a first lieutenant in the WAARNG. 7. A letter from the applicant, dated 15 November 1995, shows he requested immediate release from the WAARNG due to conflicts with his civilian employer. The letter acknowledged that an investigation had been initiated into his attendance at a military school. He asked to be discharged at the conclusion of that investigation or as soon as possible. 8. The applicant's 11 January 1996 letter of resignation mentioned the investigation that he had "misrepresented my status" at a military dive school was complete and that a show cause for retention board action might ensue. He tendered his immediate resignation in lieu of any discharge proceedings. 9. There is no available evidence that he was granted permanent Federal recognition as a first lieutenant. On 24 July 1996, he was voluntarily discharged from the WAARNG as a CW2 under, honorable conditions due to his conditional resignation in lieu of elimination. 10. Following a break in service, the applicant enlisted in the IRR on 23 January 1997 for 4 years and then enlisted in the CAARNG for 3 years on 24 August 1997. 11. He was erroneously discharged from the ARNG and the USAR by the CAARNG on 1 November 1997 with a characterization of service of general under honorable conditions (GD). 12. On 25 April 2000, the CAARNG revoked the discharge from the USAR and assigned the applicant to the IRR effective 1 November 1997. 13. On 5 July 2000, the applicant re-enlisted in the IRR for 6 years to serve as an individual mobilization augmentee (IMA) Soldier. 14. On 4 May 2005, he was discharged by the U.S. Army Human Resources Command (HRC) due to the applicant's CAARNG GD. However, during the 5 retirement years before the HRC discharge, 20000828 to 20050827, the applicant only earned 15 membership points in each year and in 1 year he earned an additional 13 points for active duty and 1 point for inactive duty. Accordingly, none of the 5 years qualified for creditable years toward Reserve retirement. 15. In the referenced case, AR20130008506, the erroneous 4 May 2005 discharge was corrected placing the applicant back in the IRR effective 4 May 2005. Because of the erroneous discharge, the Board also accepted that this kept the applicant from re-enlisting after his last period of service and corrected this injustice by placing him in the IRR on 3 July 2006 for an indefinite period of service for continued enlisted status as though he did re-enlist. However, based on his retirement point credit in the 6 years prior to this erroneous discharge wherein he earned only 15 membership points per year and 13 points for active duty and 1 point for inactive duty in 1 of those years, the Board did not find it just or equitable to award him more than his demonstrated pattern of 15 membership points per year for the period 28 August 2005 to 27 August 2014. These directed corrections were accomplished by HRC on 3 October 2014. 16. In an earlier ABCMR case boarded in June 2012, it was stated that the applicant's CAARNG commander had already placed him in an inactive status at the time of his discharge from the CAARNG in 1997 due to extensive travel related to his civilian employment. It also shows that the subsequent change to his CAARNG discharge orders with assignment to the IRR was based at least in part on his request for assignment to the IRR based on his civilian employment situation. 17. A DA Form 5016, dated 7 April 2016, shows: a. that with the exception of approximately 2 years of inactive duty credit earned with the WAARNG and a single inactive duty point in the 2001-2002 timeframe the applicant had earned no inactive duty points during the approximately 32 retirement years during the period 28 August 1983 through 27 August 2015 following his Regular Army service of 1 year and 3 months. b. he had at least 12 active duty points in 7 of the 12 retirement years during the period 28 August 1983 through his discharge based on his voluntary resignation from the WAARNG effective 24 July 1996. 18. The applicant's records show on his DD Form 214 for the period ending 15 March 2002 that he had been awarded the Combat Scuba Diver Badge. His DA Form 2-1, block 9, shows he was awarded the Combat Diver Badge, and in block 17, that he completed a 4-week Combat Diver course at the U. S. Army John F. Kennedy Special Warfare Center (USAJFKSWC) in 1989. REFERENCES: 1. Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve components (RC) Soldiers. Chapter 2 provides eligibility criteria and states, in pertinent part, that in order to qualify for non-regular retirement, a member must have attained age 60 and completed a minimum of 20 years of qualifying service. Paragraph 2-8 defines qualifying service and states, in pertinent part, that an RC Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. 2. Sections 12731 through 12739 of Title 10, U.S. Code, authorize retired pay for Reserve Component 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. 3. Amy Regulation 140-1 (Army Reserve – Mission, Organization, and Training) shows that USAR control groups include: a. Control Group (Annual Training) consists of nonunit Ready Reserve Soldiers with a training obligation. These Soldiers may take part in annual training when so directed. b. Control Group (IMA) consists of Ready Reserve nonunit Soldiers who are assigned to authorized augmentation positions documented on Active Army organization mobilization Tables of Distribution and Allowances (TDA). These Soldiers are considered available for mobilization or national emergency. IMA and drilling IMA Soldiers are required to perform a minimum of 12 days of annual training per fiscal year exclusive of travel time. Periods of inactive duty for training for pay may be authorized within budgetary constraints. c. Control Group (Reinforcement) consists of all other nonunit Ready Reserve Soldiers not assigned to another control group. These Soldiers may be assigned to a USAR unit or IMA position. d. IRR Soldiers may attend battle assemblies (inactive duty) with local Reserve units for retirement points only (non-pay status). 4. Army Regulation 600-8-22 (Military Awards), dated 25 June 2015, states in: a. paragraph 8-19 that there are five types of diver badges authorized for award. They are as follows: (1) Master Diver Badge. (2) First-Class Diver Badge. (3) Salvage Diver Badge. (4) Second-Class Diver Badge. (5) Scuba Diver Badge. b. paragraph 8-20 that the Scuba Diver Badge has been renamed the Special Operations Diver Badge. The basic eligibility criteria for award of the Special Operations Diver Badge is as follows: (1) Special Operations Diver Badge is awarded to graduates of the USAJFKSWCS Combat Diver Qualification Course, Special Forces Underwater Operations, Key West, Florida or any other U.S. Army Special Operations Command approved combat diver qualification course. (2) Commanding General, USAJFKSWCS is the approval authority for the Special Operation Diver Badge. (3) Requests for retroactive award of the Special Operations Diver Badge must be submitted to Commander, U.S. Army John F. Kennedy Special Warfare Center and School (AOJK-SFP), 3004 Ardennes Street, Stop A, Fort Bragg, NC 28310-0001. (4) The Special Operations Diver Badge may be revoked by the Commander, USAJFKSWCS or USAHRC, AHRC–PDO–PA, based on the recommendation of the field commander (COL and above). If the commander believes the individual has exhibited a pattern of behavior or duty performance that is inconsistent with expectations of the Army, or the qualified service member does not continuously demonstrate enhanced degrees of confidence, commitment, competency and discipline, then the badge may be revoked. Award of the Special Operations Diver Badge may be revoked for any of the following conditions: (a) Dismissal, dishonorable discharge, or conviction by courts-martial for desertion in time of war; (b) Failure to maintain prescribed standards of personal fitness and readiness to accomplish missions commensurate with position and rank; or (c) Upon relief or release for cause. DISCUSSION: 1. Concerning the applicant's footnote 11 reference to the four ABCMR decisions for other applicants wherein those applicants were granted retirement points to correct an error or injustice, the Board considers each case on its own merits and makes a decision on each case's unique merits. In three of the four other cases, the applicants had not been correctly credited with retirement points earned for duty actually performed, or the applicant demonstrated consistent duty performance that had already qualified them for Reserve retirement but were missing certain additional years due to calculation errors in mandatory retirement date or promotion. In the remaining case, retirement points were not considered. 2. In the 20 similar cases presented as evidence by counsel, the ABCMR granted retirement points sufficient to make good years toward retirement with commensurate back pay and allowances. Each case was decided based upon its unique individual merits. When these merits demonstrate an error or injustice, appropriate corrections are made according to the unique circumstances and facts in the case. 3. Counsel requested that the applicant’s record be corrected to show that he earned 50 retirement points and a creditable retirement year for each year from 6 October 1997 through 25 April 2000 and paying him all due pay and allowances for these inactive duty and active duty periods resulting from his unlawful and erroneous discharge from the CAARNG. It is noted that the effective date on the discharge dated 6 October 1997 was 1 November 1997 so the period in question would start on 1 November 1997 instead of 6 October 1997. a. The date 1 November 1997 is in the retirement year period 28 August 1997 to 27 August 1998. During this period, the applicant earned 75 retirement points so this year qualifies as a year good for retirement and is not eligible for additional points. b. The retirement year 28 August 1998 to 27 August 1999 shows that the applicant earned 46 retirement points. In consideration of the erroneous CAARNG discharge that prevented the applicant from earning sufficient points in this period, the retirement point record should be corrected as a matter of justice to show an additional 4 points for inactive duty for training, thereby making this a good year for retirement. The applicant should be paid pay and allowances for 4 inactive duty for training drills. c. During the retirement year 28 August 1999 to 27 August 2000, the applicant was denied the opportunity to earn retirement points from 28 August 1999 to 25 April 2000, 8 months or 2/3rds of the year, when the erroneous CAARNG discharge was revoked and he was placed back in the USAR IRR. The remaining 4 months of this year, he was in the IRR where he could have earned retirement points. In order to make this year good for retirement, in addition to the 15 membership points he already has, the applicant would need 35 additional membership points. Since the error denied him the opportunity to earn points for only 8 months or 2/3rds of the year, as a matter of justice it would be appropriate to add 2/3rds of 35 points, or 23 points, to this retirement year. Typically in an ARNG unit, Soldiers perform 14 days of annual active duty training and additional days of inactive duty for training. Accordingly, the 23 points should be added as 14 points for active duty for training and 9 points for inactive duty for training and the applicant provided the requisite pay and allowances. d. From 25 April 2000 to the end of the retirement year 27 August 2000, a period of 4 months, there would have been opportunity for the applicant to earn the remaining 12 retirement points needed to make the retirement year 28 August 1999 to 27 August 2000 a good year for retirement. Accordingly, there is no basis for the Board to award retirement points for this 4-month period. 4. Counsel requested that the applicant’s record be corrected to show that he earned 50 retirement points and a creditable retirement year for each year from 17January 2003 (date of incorrect personnel flagging action) through 3 July 2006 (date of antedated enlistment established by the ABCMR) and paying him all due pay and allowances for these inactive duty and active duty periods resulting from his unlawful and erroneous discharge from the USAR. Counsel stated that the flagging action prevented the applicant from being promoted. There is no evidence in the record that a flagging action prevented the applicant from earning retirement points during this period sufficient to achieve good years for retirement so retirement points should not be granted for this period. 5. Counsel requested that the applicant’s record be corrected to show that he earned 50 retirement points and a creditable retirement year for each year from 3 July 2006 (date of antedated enlistment established by the ABCMR) to the present, paying him all due pay and allowances for these inactive duty and active duty periods resulting from his unlawful and erroneous discharge from the USAR. The correction directed by AR20130008506 showing that the applicant was enlisted in the USAR IRR continuously for an indefinite period of service was accomplished by HRC by creating an enlistment contract showing the enlistment date 3 July 2006. This correction was made on or about 3 October 2014 and the applicant’s retirement point account was corrected to add these years with 15 membership points for each year. It is not certain when the applicant knew that he had been placed back in the IRR to be able to request duty to earn sufficient retirement points. Because the applicant did not have the opportunity to earn sufficient points for good years for retirement from 28 August 2005 to the present (i.e., retirement year ending 27 August 2016), 11 years, as a matter of justice it would appropriate to provide the applicant the additional 35 retirement points for each of these years to make them good years for retirement and provide him the requisite pay and allowances. An IRR Soldier may perform a 14-day active duty for training period each year and earn 21 other inactive duty points for training periods or correspondence training. Accordingly, the applicant should be provided 14 days active duty for training points and 21 days of inactive duty for training points with the requisite pay and allowances for each of the 11 years during the peroid 28 August 2005 to 27 August 2016, to make these good years for retirement. The end date of 27 August 2016 is included to account for the current retirement year which will be completed prior to the resolution of this case. 6. In the referenced case, AR20130008506, the erroneous CAARNG discharge on 1 November 1997 was corrected by placing the applicant back in the USAR IRR and showing that he completed his 6-year enlistment. Because of the erroneous discharge, the Board also accepted that this kept the applicant from re-enlisting after that 6-year period of service and corrected this injustice by placing him in the USAR IRR for an indefinite period of service as though he re-enlisted on 3 July 2006. However, based on his retirement point performance in the 5 years prior to this erroneous discharge in 2006 wherein he earned only 15 membership points per year and one year earning 13 active duty for training points and 1 inactive duty for training point, the Board did not find it just or equitable to award him more than his prior 5 year demonstrated performance of 15 membership points per year for the retirement years granted, 28 August 2005 to the present. 7. Concerning the rank on his discharge from the WAARNG, the applicant was discharged in the same rank to which he was commissioned, CW2. His resignation precluded him from promotion beyond that rank. Absent evidence of error, there is no basis for a correction of his WAARNG rank. 8. The court in its remand asked if the applicant should be awarded the Special Operations Combat Diver Badge. A review of the Army awards regulation does not identify a badge by that name. The regulation does, however, identify two diver badges: the formerly-named Scuba Diver Badge, and the currently-named Special Operations Diver Badge. In accordance with the Army Regulation 600-8-22, paragraph 8-20, for a retroactive award of the Special Operations Diver Badge, the applicant must submit a request to the Commander, U.S. Army John F. Kennedy Special Warfare Center and School (AOJK-SFP), 3004 Ardennes Street, Stop A, Fort Bragg, NC 28310-0001. There is no evidence of record indicating that the applicant has exhausted this existing administrative remedy. If he submits a request to the appropriate authority and that request is denied, he may submit a new application to this Board. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004976 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004976 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2