ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 October 2019 DOCKET NUMBER: AR20160019273 APPLICANT REQUESTS: in effect, revocation of his discharge from the United States Army Reserve (USAR) and assign him to the USAR Control Group (Retired Reserve). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Texas (TX) Military Forces memorandum, dated 2 November 2009, Subject: Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) * DD Form 256A (Honorable Discharge Certificate) 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 (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, he requests that the order from the Texas Army National Guard (ARNG), which assigned him to the USAR Control Group Individual Ready Reserve (IRR) be revoked and an order to assign him to the USAR Control Group (Retired Reserve) be published in order for him to receive his retired pay at age 60. 3. The applicant provides: a. TX Military Forces memorandum dated 2 November 2009, that notified him of his eligibility for retired pay at age 60 upon application at age 60 in accordance with (IAW) provisions of Title 10, USC, 1223. b. DD Form 256A, that shows he was discharged from the USAR on 18 November 2014. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 19 January 1989. b. He was discharged from active duty on 18 January 1993 with an honorable characterization of service under provision of Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), chapter 4 (Separation for Expiration of Service Obligation). His DD Form 214 (Certificate of Release or Discharge) shows he completed 4 years of active service. c. He enlisted in the TX ARNG of the United States on 20 Separation 1993. d. DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 20 October 1996, he extended his enlistment for 3 years. e. DA Form 4836, dated 1 November 1999, shows he extended his enlistment for 3 years and he extended again on 3 November 2002 and 8 January 2004 for 3 years. f. His DD Form 214 shows he was ordered to active duty on 29 October 2005 in support of Operation Enduring Freedom. He was released from active duty on 16 October 2006 with an honorable characterization of service under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), chapter 4. His DD Form 214 shows he completed 11 months and 18 days of active service. g. His DD Form 214 shows he was ordered to active duty on 28 August 2008 in support of Operation Iraqi Freedom. He was released from active duty on 15 October 2009 with an honorable characterization of service under the provisions of AR 635-200, chapter 4. It also shows he completed 1 year, 1 month and 18 days of active service. h. His DD Form 215 (Correction of DD Form 214), dated 23 October 2009, shows his entrance on active duty was corrected to 12 September 2008 and his net active service for this period was correct to show 1 year, 1 month and 4 days. i. TX Military Forces memorandum, dated 2 November 2009, shows he was notified of eligibility for retired pay at age 60 (20 Years Letter). j. DA Form 4836, dated 19 July 2010, shows he extended his enlistment for 1 year. k. His DD Form 214 shows he was ordered to active duty on 26 September 2010 in support of Operation New Dawn. He was released from active duty on 8 December 2011 with an honorable characterization of service under the provisions of AR 635-200, chapter 4. His DD Form 214 shows that he completed 1 year, 2 months and 13 days of active service. l. DD Form 4836, dated 12 August 2012, shows he extended his enlistment for 1 year. m. DA Form 4836, dated 26 October 2013, shows he extended his enlistment of 1 year. n. TX Military Forces memorandum, dated 6 February 2014, he was notified that the Enlisted Qualitative Retention Board (QRB) did not recommended him for retention and his membership in the TX ARNG must end on 30 September 2014. He would be reassigned to the USAR Control Group (Reinforcement) or the USAR Control Group (Retired Reserve) depending on his selection IAW AR 135-205 (ARNG and USAR – Enlisted Personnel Management). o. TX Military Forces Order Number 280-061, dated 7 October 2014, shows he was assigned to the USAR Control Group (Reinforcement) on 30 September 2014 due to a selective or qualitative retention action under provision of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 6-36r (not selected for retention by a QRB) with an honorable characterization of service. p. U.S. Army Human Resources Command (HRC) Order Number D-11-424161 dated 18 November 2014, he was discharged from the USAR on 18 November 2014 with an honorable characterization of service under provision of AR 135-178 (ARNG and USAR – Enlisted Administrative Separations). 5. There is no evidence that the applicant applied to the Army Discharge Review Board. 6. In the processing of this case, an advisory opinion, dated 4 October 2018 (email), was received from the National Guard Bureau, Chief of Special Actions Branch. The advisory official found that a review of the applicant’s records determined that this case should be directed to HRC separations to retire the applicant effective 14 November 2014. He was not selected for retention by the QRB and IAW AR 135-205, paragraph 4-7b Soldiers not retained by the board may elect to go into the USAR Control Group (Reinforcement). 7. By regulation 135-205, prescribes policies and responsibilities for the Qualitative Retention Program (QRP). The separation programs, policies, and procedures in this regulation are conducted without regard to race, religion, gender, or national origin. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was warranted. Based upon the NGB advisory recommendation, the Board concluded that an injustice was present in that the applicant should have been offered the opportunity to retire. Therefore, the Board recommended granting the requested relief. 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 the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by revoking the applilcant’s discharge order from the USAR (D-11-424161) and reassigning him to the USAR Control Group (Retired Reserve) effective 18 November 2014. 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 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) 135-205 (ARNG and USAR – Enlisted Personnel Management), in effect at the time, prescribes policies and responsibilities for the Qualitative Retention Program (QRP). The separation programs, policies, and procedures in this regulation are conducted without regard to race, religion, gender, or national origin. a. Paragraph 2-17 (Disposition of Soldiers not selected for retention), Soldiers who were not selected for retention are considered fully qualified for continued participation in the USAR as assigned Individual Ready Reserve (IRR) Soldiers if they have not reached age 60. Soldiers not selected for retention will be processed for transfer or reassignment according to the option selected under paragraph 2-6d (1) and indicated by endorsement to response memorandum. b. Paragraph 2-6d (1), the Soldier, when notified of pending board consideration, will indicate by endorsement to response memorandum the option preferred, if not selected for retention. These options are reassignment or transfer to the Retired Reserve, if otherwise qualified and reassignment or transfer to the Control Group (Reinforcement) of the IRR 3. Army Regulation (AR) 135-178 (Enlisted Administrative Separations), in effect at the time, provides general guidance which applies when referenced under the reasons for separation in this regulation. Paragraph 2-15 (Discharge after expiration of service obligation), a Soldier is entitled to be discharged on the expiration of his or her service obligation and normally will be discharged unless action is taken to retain the Soldier beyond such expiration date. 4. Army Regulation (AR) 140-10 (Assignments, Attachments, Details, and Transfers), in effect at the time, prescribes policies, responsibilities and procedures to assign, attach, detail, remove or transfer U.S. Army Reserve (USAR) Soldiers. a. Chapter 6 (Transfer to and from the Retired Reserve), assignment to the retired reserve is authorized as listed. Eligibly Soldiers must request transfer if: * entitled to retired pay from U.S. armed forces because of prior military service * completed a total of 20 years of active or inactive service in the U.S. armed forces * medically disqualified for active duty resulting from a service connected disability * appointed based on the condition the Soldier immediately apply for transfer to the retired reserve * reached age 37 and completed a minimum of 8 years of federal service * reached age 37 completed a minimum of 8 years qualifying federal service and served at least 6 months on active duty in time of war or national emergency * completed 10 years or more active federal commissioned service * medically disqualified not a result of won misconduct for retention on an active status or entry on active duty regardless of the total years of service completed b. Chapter 7 (Removal from Active Status), transfer to the retired reserve is authorized when requested by Soldiers who are eligible. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20160019273 5 1