ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 November 2019 DOCKET NUMBER: AR20170000713 APPLICANT REQUESTS: to change his narrative reason for separation to Retired Reserve. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States). 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, he was discharged from service on 6 October 2014 because he needed knee surgery, and reduction in forces. He just found out that he was placed in Individual Ready Reserves, and should have been retired instead. He is requesting his status be corrected to Retired Reserve. 3. A review of the applicant’s service record shows: a. He enlisted in the United States Air Force (USAF) on 25 February 1986. b. His DD Form 214 (Certificate of Release or Discharge from Active Duty), reflects that he was honorably released on 15 June 1995 from active duty (REFRAD), under the provisions of Air Force Instructions (AFI) 36-3208 (Administrative Separation of Airmen), under the early release program, special separation benefit. He had 9 years, 3 months and 21 days of active service. c. On 7 October 1996, he enlisted in the North Carolina Army National Guard (NCARNG). d. On 6 October 2005, he was honorably discharged from the NCARNG, under the provisions of NGR 600-200 (Personnel – General - Enlisted Personnel Management), for expiration terms of service. He had 10 years, 3 months and 21 days of inactive service. e. He received his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) on 14 September 2007. f. On 29 July 2008, his immediate commander recommended separation for being absent without leave/unsatisfactory participant for more than 9 consecutive periods during annual training (AT) in 2008. g. He was ordered to active duty in support of Operation Iraqi Freedom on 1 December 2008. He was honorably REFRAD under the provisions of Army Regulation (AR) 635-200 for completion of required active service on 1 September 2011. He had 13 years, 3 months and 20 days of active service, and 11 years, 11 months and 16 days of inactive service. His ARNG Annual Statement reflect 5,853 total points for retired pay. h. On 28 May 2014, he was notified of his non-selection for continued unit participation by the Enlisted Qualitative Retention Board. On 6 October 2014, he was honorably reassigned to the U.S. Army Reserve (USAR) Control Group for completion of statutory or contractual obligation. He had 26 years for retired pay. i. On 21 October 2014, he was honorably discharged from the USAR Control Group. 4. In the processing of this case, the United States Army Human Resources Command (HRC) reviewed the applicant's case and rendered an advisory opinion on 18 October 2019. The HRC, Chief, Personnel Actions Branch opined: a. Recommend full administrative relief with revocation of the discharge order once all retirement creditable years of service are verified. The Soldier can then be placed into the Retired Reserve upon verification of the Soldier s qualifying years of service as illustrated in his NGB 23B and other supporting documents. b. The applicant was identified by the North Carolina Army National Guard as not selected for retention by a qualitative retention board and the Soldier elected to be reassigned to either the USAR Control Group (Reinforcement) or the Retired Reserve. The North Carolina Army National Guard transferred him to the USAR Control Group and subsequently discharged. c. The applicant was transferred to the USAR Control Group (Reinforcement) on October 6, 2014 and his ETS was 15 days after on October 21, 2014. The Discharge order was published based on the Soldier’s ETS date of October 21, 2014, which is automatically generated by the Automated Orders and Resource System (AORS). Soldiers must request to be transferred into the Retired Reserve through their current organization. 5. On 1 November 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a response and/or a rebuttal. He did not respond. 6. By regulation AR 135-180, under 10 USC 12731(a) Reserve Component Soldiers who complete the eligibility requirements 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. The Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) will be issued by HRC for all USAR Soldiers except for those who are within 2 years of qualifying for an active duty retirement and can remain on active duty to complete the required service. The Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) will be issued in the format determined by HRC. 7. To be eligible for retired pay at or after the minimum age, an individual need not have military status at the time of application, but must have completed one of the following a minimum of 20 years of qualifying service computed under 10 USC 12732. 8. By regulation, AR 135-180, HRC will update the DA Form 5016 (Reserve Points Statement) for USAR Soldiers annually at the end of their annual year and place it into their on-line record for their review. Soldiers will review their retirement point statement annually and provide supporting documents to correct any deficiencies through their chain of command to HRC. 9. By law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60. A person is entitled, upon application, to retired pay if the person has attained the eligibility age applicable and has performed at least 20 years of service. At the time of his retirement, the law required the last 8 years of qualifying service to be in the Reserve. 10. By regulation (AR 135-180), paragraph 2-1a indicates 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 a Reserve Component (RC) Soldier. The requirement to serve the last 8 years in an RC was later amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero (0) years. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. Board members found sufficient evidence to show an error. The Soldier should have been transferred to the Retired Reserve. It is possible he did not request to transfer to the Retired Reserve or did not return his election on time. Regardless, in the Board’s opinion, not allowing the applicant to transfer into the Retired Reserve would create an injustice which should be corrected. 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 the Army records of the individual concerned be corrected by revoking his U.S. Army Reserve discharge orders and issuing new orders transferring him to the Retired Reserve effective 21 October 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 135-180 (Army National Guard and Army Reserve-Retirement for Non-Regular Service) chapter 2-5 dated 28 May 2015 states that any period of service as a member of a regular component between the periods of Reserve service counted toward 8 or 6 year requirement will be included in the determination of the Soldier’s years of qualifying service in paragraph 2-2 toward eligibility for non-regular retired pay, but will not count toward the last 8 or 6 years. Any Reserve service served in conjunction with regular service will not count toward the last 8 or 6 years (that is, partial year credit). 3. 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. Section 12731 states a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person has attained the eligibility age applicable under the appropriate subsection and has performed at least 20 years of service computed under section 12732 of this title. By law: a. 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 April 25, 2005, performed the last six 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, the Fleet Reserve, or the Fleet Marine Corps Reserve, except that in the case of a person who completed the service requirements of paragraph (2) before October 5, 1994, the number of years of such qualifying service under this paragraph shall be eight; and 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. b. Each one-year period, after July 1, 1949, in which the person has been credited with at least 50 points on the following basis: 1.) One point for each day of: (a) active service; or full-time service under sections 316, 502, 503, 504, and 505 of title 32 while performing annual training duty or while attending a prescribed course of instruction at a school designated as a service school by law or by the Secretary concerned if that service conformed to required standards and qualifications. (b) One point for each attendance at a drill or period of equivalent instruction that was prescribed for that year by the Secretary concerned and conformed to the requirements prescribed by law, including attendance under section 502 of title 32. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170000713 4 1