ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 December 2019 DOCKET NUMBER: AR20170001029 APPLICANT REQUESTS: the issuance of a 15 Year Notification of Eligibility (NOE) for Retired Pay at Age 60 (15 Year Letter). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * Army Review Boards Agency (ARBA) letter * Headquarters, 70th Regional Support Command Orders 02-088-014, dated 29 March 2002 * U.S. Army Reserve Personnel Command, Chronological Statement of Retirement Points, dated 24 May 2002 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 never received a 15 Year NOE Letter when he turned 60 years old. He is writing again to check the status of his application, as he needs to renew his identification card and that of his wife as well as apply for TRICARE as he will be retiring from his current job soon. 3. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant enlisted in the Regular Army on 25 September 1986 and was honorably discharged on 19 October 1994, due to the completion of required active service after 8 years, 5 months, and 25 days of net active service. 4. An NGB Form 22 (Report of Separation and Record of Service) shows he enlisted in the Army National Guard (ARNG) on 20 October 1994 and was honorably discharged from the ARNG after 1 year, 2 months, and 6 days net service in the ARNG on 25 December 1995 for the purpose of immediate enlistment in the U.S. Army Reserve. 5. A DA Form 3540 (Certificate and Acknowledgement of Service Requirements for Individuals Enlisting, Reenlisting, or Transferring into Troop Program Units (TPU) of the U.S. Army Reserve (USAR) shows he enlisted in the USAR on 26 December 1995. 6. Headquarters, 70th Regional Support Command Orders 02-088-014, dated 29 March 2002 released the applicant from his USAR TPU assignment in the 175th Transportation Company and reassigned him to the USAR Control Group (Retired) effective 30 April 2002 due to retirement, 20 years of Reserve Service. 7. The applicant provided a U.S. Army Reserve Personnel Command Chronological Statement of Retirement Points, dated 24 May 2002, which shows effective 1 May 2002, the applicant had 15 years, 7 months, 21 days of qualifying service for retirement. 8. The applicant’s records are void of documentation showing he qualified for, requested, and was approved for early retirement eligibility at 15 years of service under the Temporary Early Retirement Authority (TERA) based on physical disability or any other criteria. 9. The applicant’s records do not contain a 15 Year NOE for Retired Pay at Age 60 or a 20 Year NOE for Retired Pay at Age 60. 10. A review of the U.S. Army Human Resources Command (HRC), Soldier Management System (SMS), shows the applicant was transferred from USAR TPU service (current organization “H”) to the USAR Retired Reserve (current organization “R”) effective 1 May 2001, due to completion of 20 or more years of qualifying service for retired pay at age 60. 11. There is no evidence of record the applicant completed 20 years of qualifying service for retired pay at age 60. 12. A further review of the HRC SMS Transactions shows officials at HRC received a request for retired pay packet from the applicant in August 2016, but were unable to process his request due to missing documentation, including a NOE for Retired Pay at Age 60 (20 Year Letter). It also shows his years of service were 15 years, 7 months, and 21 days creditable toward retirement and he was notified of the application deficiencies. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, a majority of the Board concluded the applicant was not eligible to receive a 15-Year NOE. The majority of the Board found insufficient evidence to conclude he was transferred to the Retired Reserve because he was unfit because of physical disability, nor was he transferred to the Retired Reserve at a time when the statutory provisions for Temporary Early Retirement Authorization were in effect. The majority determined a preponderance of the evidence shows that, unfortunately, the applicant misunderstood the length of service requirements for eligibility for a non-regular retirement at age 60 (i.e., 20 years of service during which the member earns 50 points or more per year or 15 years under certain circumstances). Nonetheless, the majority found no basis in policy or law that would allow the Board to make a favorable decision in this case. The majority noted that, if the applicant can provide documentation confirming he was unfit to continue serving by reason of physical disability, he should submit that documentation with a request for reconsideration. 2. The minority member noted the orders transferring the applicant to the Retired Reserve indicate his command believed he had completed sufficient service to be eligible for retired pay at age 60, which would have compounded the applicant's misunderstanding of his eligibility. The minority member concluded that a preponderance of the evidence supports a recommendation to constructively credit the applicant with 20 qualifying years of service for retired pay at age 60 and issue him a 20-Year NOE confirming his eligibility for retired pay. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X :X DENY APPLICATION 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. 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. Public Law 102-484, section 4403 of the Fiscal Year 1993 National Defense Authorization Act, dated 23 October 1992, was the first authorization to allow the U.S. Army to create an early retirement program, the Temporary Early Retirement Authorization (TERA) for Active Component and Active Guard and Reserve Soldiers who had completed 15 years of Active Federal Service (AFS), but less than 20 years of AFS at their separation date and who requested retirement in lieu of separation. The TERA was enacted by Congress to assist in the military drawdown of forces and to permit selected military members to retire early between 15 and 20 years of service and for Regular Army Soldiers to accrue additional military retirement points through service in Reserve Components (RC) or employment in qualifying public or community service organizations. The Secretaries of the respective services designated the ranks and military specialties that were eligible to apply according to the needs of the specific service. Retirement under this program was not a right; it was granted on an individual basis according to the requirements of the service. 3. Title 10 USC, section 12731 (Age and service requirements) provides the legal age and service requirements for age and service for Reserve non-regular retirement. It states that, upon application, a person is entitled to retired pay if the person has attained the applicable eligibility age, has performed at least 20 years of service computed under section 12732 of this Title; 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. 4. Title 10 USC, section 12731a (Temporary special retirement qualification authority) provides for retirement with at least 15 years of service. The Secretary concerned may, during the period described in the subsection below, determine to treat a member of the Selected Reserve of a RC of the armed force under the jurisdiction of that Secretary as having met the service requirements of 10 USC 12731, subsection (a)(2), 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 c. upon the request of the member submitted to the Secretary, transfer the member to the Retired Reserve. d. The period referred to above is the period beginning 23 October 1992 and ending 31 December 2001. 5. Title 10 USC, section 12731b (Special rule for members with physical disabilities not incurred in the line of duty), enacted 23 October 1992, provides in pertinent part that in the case of a member of the Selected Reserve of a RC who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes as of 1 October 1991. This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170001029 4 1