IN THE CASE OF: BOARD DATE: 20 November 2018 DOCKET NUMBER: AR20160017878 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 IN THE CASE OF: BOARD DATE: 20 November 2018 DOCKET NUMBER: AR20160017878 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. IN THE CASE OF: BOARD DATE: 20 November 2018 DOCKET NUMBER: AR20160017878 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 record to show he completed 20 years of creditable service for a non-regular retirement by correcting his record to show he received 37 points in 2007 and 19 points in 2008. 2. The applicant states: a. He has 18 good years of service for retirement but in 2007-2008, he was transitioning from the inactive U.S. Navy Reserve (USNR) to the California Army National Guard (CAARNG) performing active duty service with the CAARNG mobilizing troops for deployment overseas; however, his points from this period of service were not credited by either the USNR or the CAARNG. The applicant claims he served 29 of a possible 88 days plus 8 days for Operation Lighting Strike in 2007 and 19 of 63 days in 2008. b. By the time the error was discovered in 2015, he had reached the mandatory retirement age of 68 and his Leave and Earnings Statements (LES) were lost or no longer available from the CAARNG or the Defense Finance and Accounting Service (DFAS). It is unjust that he was not credited with the final 2 years needed to qualify for retirement when he clearly performed service as shown by his Forms W-2 (Wage and Tax Statement) and commander’s statement. The applicant has had a distinguished career serving as a medical doctor as well as performing 5 active duty tours in Iraq, Kuwait, and Afghanistan and award of the Legion of Merit. 3. The applicant provides: * Permanent Orders Number 342-23 * 3 Forms W-2 * 2 letters * U.S. Army Human Resources Command (USAHRC) Form 249-E (Chronological Statement of Retired Points) 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 records contain an Honorable Discharge Certificate which shows he was honorably discharged from the USNR effective 24 November 2006 and a Statement of Service for Navy Reserve Retirement dated 2 April 2015 which shows he had accrued 11 qualifying years of service as of 24 November 2006. 3. Effective 9 October 2008, the applicant was appointed as a lieutenant colonel in the ARNG. 4. The applicant was honorably discharged from the USAR on 31 March 2015. 5. AHRC Form 249-E dated 6 April 2015, shows he has 18 years, 1 month and 11 days of total of qualifying service towards a non-regular Reserve retirement. The form shows, in part, he earned – * 15 points (membership only) for service in the USNR during the period 20 November 2006 to 19 November 2007 * 13 points (prorated membership points only) for service in the USNR during the period 20 November 2007 to 8 October 2008 * 24 points (inactive duty points, prorated membership points, and active duty points combined) for service in the ARNG during the period 9 October 2008 to 19 November 2008 6. The applicant provides: a. Permanent Orders Number 342-23 which show he was awarded the Legion of Merit on 9 December 2015. b. Wage and Tax Statements for 2007 and 2008 showing – * In 2007 he received $1,157.28 in wages from the State of California Military Department * In 2008 he received $1,017.38 in wages from the DFAS * In 2008 he received $6.637.41 in wages from the State of California Military Department c. A letter, dated 14 January 2015, wherein the Chief, National Guard Bureau congratulated the applicant on his over 31 years of service and retirement. d. A letter, dated 3 August 2015, from the Director of Medical Services, State of California, Office of the Adjutant General, State Military Reserve to the Medical Corps Career Manager, Reserve Branch Health Services Division, USAHRC, in which the Director Medical Services claims the applicant served on active duty at Camp Roberts with the CAARNG providing medical services to support mobilization of the CAARNG for duty in Iraq and Afghanistan. Somehow, the applicant did not receive retirement credit for his active duty in 2007-2008 when he was called to active duty while assigned to the USNR Individual Ready Reserve. Based on his personal knowledge of the applicant’s service, he estimates the applicant served at least 31 days active duty at Camp Roberts and another 8 days during Operation Lightning Strike in 2007 and at least 17 days active service in 2008. He claims to possess blanket orders pertaining to the applicant’s service; however, none were present in the applicant’s official military personnel file. REFERENCES: 1. Army Regulation 135-180 (Army National Guard and Army Reserve – Qualifying Service for Retired Pay Non-regular Service) implements statutory authorities governing granting retired pay to Soldiers and former Reserve Component Soldiers. Paragraph 2-8 describes qualifying service as service performed in an active status in a Reserve Component or in active Federal service. After 30 June 1949, a Reserve Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. When a person is in an active status for a period of less than a full retirement year, a minimum number of retirement points must be earned to have that period credited as qualifying service. 2. Title 10, U.S. Code, sections 12731 through 12740 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. Army Regulation 15-185 (ABCMR), paragraph 2-5, states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant requests, in effect, correction of his record to show he completed 20 qualifying years of service for non-regular retired pay. 2. The evidence of record shows the applicant was discharged from the USNR on 24 November 2006. At the time of discharge, he had completed 11 years of qualifying service toward retirement. 3. The applicant was appointed as a lieutenant colonel in the ARNG on 9 October 2008 and he was subsequently honorably discharged from the USAR on 31 March 2015. His chronological statement of retirement points shows he has only completed 18 years, 1 month and 11 days of qualifying service for retirement. 4. The available evidence indicates that during the period in question (2007-2008) the applicant was still a member of the USNR. To perform any duty in support of the CAARNG as a member of the USNR, he would have been placed in an active duty status under USNR authority, and accounting for his active duty points would also have been accomplished under USNR rules and authority. This Board is not empowered to correct records of the United States Navy. There is no clear evidence of error in the accounting of his retirement points after he was appointed as an officer in the CAARNG on 9 October 2008. 5. In order to be eligible for retired pay upon attaining 60 years of age, a Reserve Soldier or former Reserve Soldier must have completed a minimum of 20 qualifying years of service, having earned 50 retirement points during each year. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160017878 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160017878 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2