IN THE CASE OF: BOARD DATE: 15 May 2019 DOCKET NUMBER: AR20160019093 APPLICANT REQUESTS: in effect, transfer him to the Retired Reserve. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Online Application for Correction of Military Record * U.S. Army Reserve Personnel Command (ARPERCEN) memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) * Honorable Discharge Certificate FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) 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 effect, his current discharge does not make him eligible for the benefits to which he is entitled. a. He began his Army career with the New York Army National Guard (NYARNG); he transferred to the U.S. Army Reserve (USAR) so he could complete Command and General Staff College (CGSC). In 2000, the USAR discharged him without first transferring him to the Retired Reserve. b. He has since learned of a number of problems with his Army record; when he applied for TRICARE (military healthcare system), the data inaccurately indicated he served simultaneously in the NYARNG and the USAR. Even more egregious, they did not consider him to be in a retired status, despite receiving his 20-Year letter. c. While he knows he received an honorable discharge, he has no idea why the Army separated him; he affirmed he completed 20 years of service and, thus, was retirement eligible at his separation. He would like his records corrected so that he can become eligible for healthcare benefits and receive his retired pay. 3. The applicant's service records show: 1. a. He was born in 1961 and will turn 60 in 2022. He enlisted in the NYARNG on 2 April 1979; the NYARNG honorably discharged him on 25 June 1981 so he could accept an appointment as a commissioned officer in the NYARNG. He executed his oath of office on 26 June 1981. b. On 1 August 1994, the NYARNG honorably discharged him and transferred him to the USAR Control Group (Reinforcement)/Individual Ready Reserve (IRR). c. Effective 2 August 1994, the U.S. Total Army Personnel Command (now renamed U.S. Army Human Resources Command (HRC)) promoted him to Major (MAJ). d. The applicant participated in the CGSC course from 7 November 1995 until completion on 25 January 1999; he achieved course standards and earned a satisfactory rating. e. On 26 August 1999, ARPERCEN issued him his 20-Year letter. f. On 29 August 2000, ARPERCEN honorably discharged him from the USAR Control Group (Reinforcement), per Army Regulation (AR) 135-175 (ARNG and USAR – Separation of Officers). His service records are void of any documentation showing the basis for this discharge. g. The applicant's electronic service records, maintained by HRC on the Soldier Management System (SMS) database, indicate: * Grade – MAJ * Date Eligible for Promotion – 1 August 2001 * Mandatory Removal Date – 25 July 2009 * Personnel Actions – Involuntarily discharged on 29 August 2000 due to unsatisfactory participation h. His DA Form 5016 (Chronological Statement of Retirement Points) indicates he completed 20 years of qualifying service for a non-regular retirement. In addition, the form does not show any earned time that qualified for retirement, nor did he attain a minimum of 50 creditable points for the following periods: 19990102 through 20000401 and 20000402 through 20000829. 4. Per AR 135-175, USAR officers with at least 3 years of commissioned service could not be discharged without their consent; the exception was when separation was the result of an approved recommendation made by a board of officers. In addition, USAR officers with 20 or more years of qualifying Federal service for retired pay, and who were under consideration for involuntary separation, were required to be given the opportunity to elect transfer to the Retired Reserve, in lieu of involuntary separation. 1. According to AR 140-10 (Assignments, Attachments, Details, and Transfers), USAR officers who had accrued 20 or more qualifying years of service for retired pay had to attain 50 points annually to be retained in Individual Ready Reserve active status. a. The applicant affirms he has no idea why he was discharged, and his service records are void of any documentation showing the basis for his separation. However, his records show he completed 20 years of qualifying service for a non-regular retirement and is eligible for transfer to the Retired Reserve. The records also verify he did not earn the required minimum of 50 points during his last two periods before discharge. b. Due to the unavailability of the applicant's separation packet, we are unable to determine the specific circumstance(s) that led to his discharge; however, despite the unavailability of supporting documentation, and in light of the record copy of his discharge order, the Board presumes the applicant's separation was completed properly. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. Based upon the documentary evidence presented by the applicant and found within the applicant’s service record, it is clear that the applicant completed 20 years of qualifying service for a non-regular retirement and is eligible for transfer to the Retired Reserve. For that reason, the Board recommended granting the applicant’s request for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :PB :BS :DF 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 relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the applicant into the Retired Reserve with an effective date of 29 August 2000. 5/21/2019 X Pamela Butler CHAIRPERSON Signed by: BUTLER.PAMELA.LYNN.1102721060 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 3 years after discovery of the alleged error or injustice. This provision of law also allows the 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. 2. Army Regulation (AR) 135-175, in effect at the time, prescribed policies and procedures for the separation of Reserve Component officers. a. Chapter 2 (Involuntary Separations – ARNGUS and USAR Officer) outlined the criteria governing the involuntary separation of Reserve officers of the Army when their retention is not in the best interest of the service. (1) Paragraph 2-3 (Limitations on Separation). An officer could be separated only when based upon the approved recommendations of a board of officer. Exceptions were as follows; when the officer: * submitted a resignation in lieu of involuntary separation, and Headquarters, Department of the Army (HQDA) accepted the resignation; or * had less than 3 years' of commissioned service and the reason for separation was a failure to meet basic branch service school standards due to academic or leadership deficiencies * did not meet medical retention standards at the time of their appointment and who, after having less than 3 years commissioned service in their present component, had not resigned (2) Paragraph 2-3d stated an officer with 20 or more years of qualifying Federal service for retired pay, and who was under consideration for involuntary separation, was to be given the opportunity to elect transfer to the Retired Reserve, in lieu of involuntary separation. (3) Paragraph 2-15 (When Involuntary Separation Action is Appropriate). No person had an inherent right to continue service as an officer. The Army extended the privilege of service only as long as he/she performed satisfactorily. (4) Paragraph 2-16 (Recommendation for Involuntary Separation). The recommendation for involuntary separation could originate from a proper HQDA agency, the officer's commander, or a duly constituted selection board. b. Chapter 4 (Discharge of Army Reserve Officers). A member of the USAR who had at least 3 years of commissioned service could not be discharged without his/her consent; the exception was when executed under the approved recommendation of a board of officers who had convened by an authority designated by the Secretary of the a. Army. Paragraph 4-4 (Removal from Active Status) stated removal from active status of members of the USAR could result from any of the following reasons: * medical unfitness * maximum age * length of service, as prescribed in AR 140-10 * non-selection for promotion after second consideration * failure to earn sufficient retirement points for retention * selection for removal from active status by a board of officers, with approval of the Secretary of the Army, when the officer was in the grade of colonel or below, and had completed 20 or more years of qualifying service for retired pay * non-availability of a Standby Reserve officer 12 months after initiation of general mobilization * failure to complete the officer's basic course * failure to meet military education requirements * non-acceptance of assignment by non-obligated officer * failure to apply for transfer to the Retired Reserve on removal from active status * failure or refusal to provide mailing address 3. AR 140-10, in effect at the time, prescribed policies and procedures for assigning, removing, and transferring USAR Soldiers. Chapter 7 (Removal from Active Status) stated Soldiers removed from active status were to be discharged or transferred to the Retired Reserve. Reasons included: a. Paragraph 7-2 (Length of Service): Officers in the grade of MAJ were to be removed from active status when they completed the earlier of the following two dates: completion of 28 years of commissioned service (if under age 25 at initial appointment), or 53rd birthday (if 25 years or older at initial appointment). b. Paragraph 7-3 (Maximum Age): Age 60 for field and company grade officers. c. Paragraph 7-3.1 (Nonparticipation): An officer who had accrued 20 or more qualifying years of service for retired pay had to attain 50 points annually to be retained in Individual Ready Reserve active status. Officers who failed to attain 50 points by the anniversary of his/her retirement year were removed from active status. d. Paragraph 7-4 (Non-Selection for Promotion). Non-selection for promotion after second consideration for promotion to lieutenant colonel required the officer's removal. 4. AR 135-180 (Qualifying Service for Retired Pay Non-Regular Service), in effect at the time, prescribed policies and procedures for a non-regular retirement. 1. a. Chapter 2 (Criteria) outlined the requirements that had to be met in order to receive non-regular retired pay: (1) By law, minimum age to receive retired pay was 60 years. (2) Must have completed at least 20 years of qualifying service. (3) Served the last 8 years of his/her qualifying service as a Reserve Component Soldiers; even though he/she may have completed over 20 years of qualifying service, he/she must have served 1 or more years as a reservist. b. Chapter 2 also stated Soldiers were required to be notified in writing of their eligibility for retired pay (i.e. 20-Year letter). The chapter further outlined procedures for requesting retired pay once eligible. All qualified individuals were responsible for submitting an application (DD Form 108 (Application for Retired Pay Benefits) approximately 6 months prior to reaching age 60. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.