ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 April 2019 DOCKET NUMBER: AR20160016008 APPLICANT REQUESTS: the issuance of a 20-Year Letter vice a 15-Year Letter. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Notification of Eligibility for Retired Pay at Age 60 (15-Year Letter) * DA Form 1559 (Inspector General Action Request) * Response from the Inspector General * Retired Reserve Orders * California Army National Guard (CAARNG) Form 350-2R (Authorization and Certification for Inactive Duty Training) 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 he is disputing his 20-year retirement letter because he received a 15-year letter instead. He has been trying to co9rrect this for the past 10 years with the Department of Veterans Affairs with no luck. 3. Review of the applicant's service records shows: a. He was born in March 1960. He will turn 60 year of age in March 2020. b. He enlisted in the U.S. Army reserve under the Delayed Entry program on 30 March 1983. b. He enlisted in the Regular Army on 10 may 1983. He was released from active duty on 18 may 1991. c. He enlisted in the CAARNG on 19 may 1991. He served in a variety of assignments and he was promoted to staff sergeant/E-6. d. He was discharged from the ARNG on 5 November 2004 and transferred to the Retired Reserve in accordance with section 260 of California Military and Veterans Code and National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-27(l) (medically unqualified for retention in the ARNG). e. his NGB Form 23B (ARNG Retirement Points History Statement) shows he completed 19 years, 11 months, and 16 days of qualifying service for non-regular retirement. f. On 13 November 2004, the CAARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (15-Year Letter), in accordance with national Defense Authorization Act of 1995, Public Law 103-337, section 517. This letter informed him: (1) He had completed at least 15 years of qualifying service during the period beginning on or after 5 October 1991; and he no longer met the qualification for membership in the Selected Reserve solely because he was unfit because of physical disability; and his disability was not the result of his intentional misconduct, willful neglect or willful failure to comply with the standards and qualifications for retention established by the Secretary of the Army or was incurred during a period of unauthorized absence (b) He was qualified for early qualification to receive non-regular retired pay at age 60. 4. He provides: a. Authorization and Certification for Inactive Duty Training, issued by the CAARNG, indicating he performed duty from 4 to 5 November 2004 in November 2004 b. A DA Form 1559, dated 20 January 2005, to the California Office of the Inspector General. He contended that his retirement points were improperly calculated and that he served an additional 2 months which would have placed him at over 20 qualifying years for non-regular retirement. c. A response letter, dated 25 January 2005, from the California Office of the Inspector General informing him that their office would look into the matter. 5. An advisory opinion was received from the National Guard Bureau on 23 January 2019. An NGB official recommended approval of the applicant's request and stated: a. The applicant states that on 15 July 2016, he contacted his local ARNG Retirement Services office in Little Rock, AR regarding his retirement benefits and was informed that his service record did not include a 20 year retirement letter. He further states that when he received his retirement packet, it showed that he had served 19 years, 11 months and 16 days as of 05 November 2004. According to him, the medical board did not consider that he had served two additional months towards his retirement history statement in November 2004. b. He provides evidence that he performed the duties which would have given him the points needed in order to receive a 20 year letter. Enclosed are CAARNG forms (350-2R) to show that he was authorized to perform a Split Unit Training Assembly (SUTA) in a paid status. If it is shown that he performed these duties and was paid as such, the NGB recommends that CAARNG order number 315-1068 be amended to reflect a separation date which would show he completed 20 years of service and that a 20 year letter be issued. c. As an alternative, recommend Soldiers RPAS be adjusted by transferring retirement points from a previous year to reflect drills being completed in 2004 and 2005. Once this action has been completed, recommend CAARNG issue Soldier a twenty year letter. d. Army Regulation (AR) 135-180, paragraph 2-2(c) states that To be eligible for retired pay at or after the age specified in paragraph 2-1, an individual need not have military status at the time of application, but must have completed one of the following: * Minimum of 20 years of qualifying service computed under Title 10, U.S. Code, section 12732 (10 USC 12732); or * 15 years of qualifying service, and less than 20, computed under 10 USC 12732, if the individual is to be separated because the Soldier has been determined unfit for continued Selected Reserve service, and none of the conditions in 10 USC 12731b exist * (3) satisfied the requirements of paragraphs (3) and (4), Section 1331 (a), 10 USC (a new subsection (f) 10 USC, e. Army Regulation 135-180 paragraph 2-4 states that under 10 USC 12731a, Reserve Component Soldiers who complete the eligibility requirements in section I will be notified in writing within 1 year after completion of the required service in accordance with AR 140-185 or NGR 680-2. The Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) will be issued to Soldiers credited with 20 years of qualifying service and should be issued prior to discharge or transfer to the Retired Reserve. f. This opinion was coordinated with the Army National Guard Retirement Services section. The CAARNG did not provide input regarding this opinion. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 7. By law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement at age 60. A qualifying year of service for non-regular retired pay is a full year during which a Regular or Reserve member is credited with a minimum of 50 retirement points. b. The CAARNG and NGB determined he had completed 19 years, 11 months, and 16 days of qualifying years of service. The law requires 20 years and he completed less than 20 years. He is ineligible to receive a 20-year letter. c. When a Soldier believes his/her retirement points are improperly calculated, they may request the State ARNG, the NGB or the U.S. Army Human Resources Command conduct an audit of their retirement points by providing the supporting evidence of the missing point, such as DA Form 1380 (Record of Individual Performance of Reserve Duty Training), DA Form 1379 (U.S. Army Reserve Components Unit Record of Reserve Training), LES, DD Form 214, Commander's Certification, or other documentary evidence that validates or confirms the missing points. d. The law also authorizes those RC members who have completed at least 15, and less than 20 years of service computed under the law who are involuntarily separated due to due to medical disqualification. A member of the Selected Reserve of an RC who is involuntarily separated due to medical disqualification may be considered as having met the service requirement and may be issued a Notification for Eligibility for Non-Regular Retired Pay at Age 60, 15-Year Letter, if the member completed at least 15 years, but less than 20 years of qualifying service for non-regular retirement. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was warranted. Based upon the CAARNG advisory recommending approval based upon evidence he completed additional military duties which if added would make the applicant eligible to receive a 20 year retirement letter, the Board determined there is sufficient evidence to warrant a recommendation for relief. As a result, the Board recommends/concurs with the NGB that recommends that CAARNG order number 315-1068 be amended to reflect a separation date which would show he completed 20 years of service and that a 20 year letter be issued. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined there is sufficient evidence to warrant a recommendation for relief. As a result, the Board recommends and concurs with the NGB, who recommends that CAARNG order number 315-1068 be amended to reflect a separation date which would show he completed 20 years of service and that a 20 year letter be issued. 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 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Non-regular Service), paragraph 2-1a, states that to be eligible for retired pay an individual does not need to have a military status at the time of application for retired pay, but must have: (1) attained age 60, (2) completed a minimum of 20 years of qualifying service, and (3) served the last 8 years of his or her qualifying service as an RC Soldier. During the period October 1991 to December 2001, the requirement to serve the last 8 years in an RC was amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero years. Each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service. 3. Department of Defense Instruction 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. 4. Title 10, U.S. Code, section 12731 states, except as provided in subsection (c), a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person (1) has attained the eligibility age applicable under subsection (f) to that person; (2) has performed at least 20 years of service computed under section 12732 of this title; (3) in the case of a person who completed the service requirements of paragraph (2) before 25 April 2005, performed the last 6 years of qualifying service while a member of any category named in section 12732(a)(1) of this title, but not while a member of a regular component, except that in the case of a person who completed the service requirements of paragraph (2) before 5 October 1994, the number of years of such qualifying service under this paragraph shall be eight; and (4) is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve. 5. Title 10, U.S. Code, section 12731(a) provides for "Retirement With At Least 15 Years of Service." For the purposes of section 12731 of this title, the Secretary concerned may (1) during the period described in subsection (b) (23 October 1992 and ending on 31 December 2001), determine to treat a member of the Selected Reserve of a reserve component of the armed force under the jurisdiction of that Secretary as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member (A) as of 1 October 1991, has completed at least 15, and less than 20, years of service computed under section 12732 of this title; or (B) after that date and before the end of the period described in subsection (b), completes 15 years of service computed under that section; and (2) upon the request of the member submitted to the Secretary, transfer the member to the Retired Reserve. ABCMR Record of Proceedings (cont) AR20160016008 5 1