ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 March 2020 DOCKET NUMBER: AR20160012155 APPLICANT REQUESTS: * to be retired with 20 years of service * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Birth Certificate * DD Form 214 (Certificate of Release or Discharge from Active duty) * Memorandum, Subject: Request for Transfer to Inactive Ready Reserve (IRR) for the applicant, dated 18 August 1992 * NGB Form 22 (Report of Separation and Record of Service) * excerpt from enlistment contract * Orders Number C-02-407674 * Honorable Discharge Certificate * Orders Number 364-805 * Army National Guard (ARNG) Retirement Points Statement FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: * in 1993, he came out of the IRR in order to complete the remaining 6 years he had to fulfill 20 years needed to draw retirement * he was released from the U.S. Army Control Group and assigned to the Kentucky Army National Guard (KYARNG) effective 16 December 1993 * he extended for 6 years through 15 December 1999 * because of timing, his anniversary year ending date (AYE) , his Expiration of Term of Service (ETS) date, and the start of his enlistment contract date did not align correctly, resulting in 48 points in his last year of service * he was 2 points shy of drawing retirement 3. A review of his service and finance records shows on: * 20 June 1978 – enlisted in the Regular Army * 2 May 1989 – honorably discharged * 21 January 1990 – enlisted in the New Jersey Army National Guard (NJARNG) * 5 July 1990 – transferred to KYARNG * 29 September 1992 – voluntarily transferred to the Inactive Ready Reserve due to hardship * 16 December 1993 – reentered in the KYARNG for a total of 6 years * 15 December 1999 – honorably discharged from KYARNG 4. His records contains the following: * DD Form 4/1 (Enlistment/Reenlistment Document) showing the applicant reentered in the KYARNG on 16 December 1993 for a total of 6 years of service, his previous military service upon enlistment was 10 years, 10 months, 12 days of active military service and 2 years, 8 months, and 7 days * ARNG Current Annual Statement dated 11 May 2001 showing he is credited with 17 years, 10 months, and 4 days of creditable service for pay. He was unable obtain a qualifying year for retirement for the following periods: * 24 May 1988-2 May 1989 – 344 active duty points, 11 months and 9 days of creditable service for pay * 3 May 1989-4 July 1990 – civilian break in service * 5 July 1990-20 January 1991 – 19 inactive duty points and 15 membership points * 21 January 1991-12 August 1991 – 22 inactive duty points and 16 active duty points * 21 January 1992-20 January 1993 – 12 inactivity duty points, 15 membership points, and 18 active duty points * 21 January 1999-15 December 1999 – 34 inactive duty points and 14 membership points, for a credit of 10 months and 25 days 5. On 10 May 2019, the National Guard Bureau (NGB) provided an advisory recommending approval of the applicant’s request. A copy of the complete advisory opinion has been provided to the Board for their review and consideration. The Chief of Special Actions Branch stated, in pertinent part, that: * the evidence suggests that the applicant’s records were not correct upon his discharge * it is reasonable to believe that he did not review the record and therefore unaware of the shortage of service time to be eligible for retirement pay at the time of discharge * due to the lack of record availability, it is difficult to confirm what duties were or were not performed by him and what his eligibility might be * therefore, he opines in favor of the Soldier 6. The applicant was provided with a copy of this advisory opinion on 16 May 2019 to give him an opportunity to submit additional matters and/or a rebuttal. 7. The applicant provides: * DD Form 214 for the period ending 2 May 1989, which shows in item 12c (Net Active Service This Period), “10 years, 10 months, and 13 days” * request from the applicant to voluntarily transfer to the IRR due to conflict between his reserve duty and civilian employment * NGB Form 22 for the period from 21 January 1990 through 29 September 1992, which shows the following in: * item 10a (Net Service This Period), “2 years, 8 months, 9 days” * item 10b (Prior Reserve Component Service), “26 days” * item 10c (Prior Active Federal Service), “10 years, 10 months, and 13 days” * item 10d (Total Service for Pay), it is edited by hand-written numbers to reflect “13 years, 7 months and 18 days” vice “1 year, 4 months, and 27 days” * excerpt from enlistment contract dated 16 December 1993, wherein the applicant enlisted in the KYARNG for 6 years * Orders Number C-02-407674, issued by US Army Reserve Personnel Center, dated 22 February 1994, which assign him to the KYARNG effective 16 December 1993 * Honorable Discharge Certificate from the ARNG, dated 15 December 1999 * Orders Number 364-805, issued by Boone National Guard Center, honorably discharged him from the ARNG effective 15 December 1999 * corrected copy of Army National Guard Retirement Points Statement prepared on 8 July 2016 showing he is credited with a total of 19 years, 10 months, and 4 days of total service for pay, which is void in the applicant’ service records 8. His service records are void nor did the applicant provide a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 9. On 28 February 2020, a second advisory of opinion was obtained from the NGB reiterating their recommendation for approval of the applicant’s request. In summary, the Chief of Special Actions Branch stated discrepancies in the applicant’s records were corrected on his NGB Form 23 to show he actually had 19 years, 10 months, and 4 days of service. Although the applicant had not attained the time necessary for a Non-Regular Retirement as he believed he had, the advisory official opines this was due to the following: a. In his final year in the active component, the applicant completed 11 months and 9 days of service, which was credible service towards retirement. Had he served 21 more days, he would have achieved a full year of credible service towards retirement. b. When the applicant enlisted in the ARNG on 5 July 1990, a new Anniversary Year Ending (AYE) date was reestablished. However, the applicant served approximately 2 years and 4 months of his initial three year contract in the KYARNG before requesting a transfer to the IRR due to difficulties between his military commitment and the needs of his civilian job. The applicant believed he had a combined total of 14 years of service up to this point, and on 16 December 1993, he rejoined the KYARNG for a term of 6 years of service. Yet, because his AYE did not adjust as a result of his time in the IRR, the applicant AYE did not line up with his enlistment term of service. At the time reached the end of his final enlistment tern, he did not have 20 years of service. Had the applicant extended through 20 January 2000, he would have attained credit for a good retirement year. 10. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 11. Please see applicable references below. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, dates of his separation from active duty and his enlistment in the ARNG and transfer to the IRR. The Board considered the length of service shown on the applicant’s NGB Form 23 and the establishment of a new Anniversary Year Ending (AYE) date. The Board considered the review and recommendations of two NGB advising officials which noted that the applicant’s AYE did not adjust as a result of his time on the IRR and that had he extended his enlistment, he would have received credit for a good retirement year. Based upon a preponderance of evidence, the Board determined that denial of non-regular retirement was an injustice and that a correction to the applicant’s record was necessary. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected as follows: - Show that the applicant extended his ARNG enlistment through 20 January 2000; - Amend his NGB 23 to reflect this correction, and; - Issue the applicant a Notification of Eligibility for Retired Pay at Age 60 (20- Year Letter). 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 15-185 (ABCMR), the regulation under which this Board operations, provides that ABCMR members will review all applications that are properly brought before them to determine the existence of an error or injustice, and to direct or recommend changes in military records to correct the error or injustice, if persuaded that a material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 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 * completed a minimum of 20 years of qualifying service * paragraph 2-8 defines qualifying service and states, that an RC Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service 4. Army Regulation (AR) 140-185 (Training and Retirement Points Credits and Unit Level Strength Accounting Records) contains Army policy for USAR training and retirement point credit. Paragraph 1-7 states a qualifying year of service for non-regular retired pay is a full year during which a RC member is credited with a minimum of 50 retirement points. Except as otherwise provided by law, an accumulation of 20 such years is one requirement necessary to qualify for non-regular retired pay. ABCMR Record of Proceedings (cont) AR20160012155 6 1