ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 17 May 2019 DOCKET NUMBER: AR20170001717 APPLICANT REQUESTS: In effect, that his military records be corrected to show that: * he meets qualification for early retirement and full benefits under the Selected Reserve Transition Benefits Program (SRTBP) * he was issued a 15 year letter APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter and timeline dated 30 November 2016 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for period ending on 30 October 1973 * Certificate of Honorable Discharge dated 1 October 1975 * Letter Orders Number 09-1292810 dated 24 September 1975 * Permanent Orders (PO) Number F-100-20 dated 7 June 1993 * DA Form 4651-R (Request for Reserve Component Assignment or Attachment) * non-regular retirement analysis dated 6 March 1994 * Orders Number 037-022 dated 7 April 1994 * Army Reserve Personnel Center (ARPC) Form 249-E (Chronological Statement of Retirement Points) * DA Form 5016 * Reserve/Retiree/ Veteran Record printout from U.S. Army Human Resources Command website FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR1999020654 on 9 November 1999. 2. The applicant states, in effect: * in June 1993, his reserve unit received orders of inactivation effective 15 October 1993 * he was informed during a battle assembly in February 1994 by the Personnel Section Noncommissioned Officer that the Army Reserves was downsizing and offering an early retirement if he qualified * to qualify for early retirement: * the unit of assignment has to be inactivated (as shown in Orders Number F-100-20) * must have more than 15 “good years” and less than 20 years (he has 16 good years) * must elect to transfer to the Retired Reserve * he has tried to correct his records over the past 20 years, but was told he did not have 20 qualifying years * the SRTBP allows for issuance of a 15 year letter to those Selected Reserve personnel who lost their paid drill positions due to unit inactivation, relocation, or reorganization during the drawdown period (1991-1999) 3. A review of the applicant’s records shows the following on: * 30 October 1973 – enlisted in the Regular Army * 30 October 1973 – honorably released from active duty after 4 years of service and transferred to the USAR Control Group (Reinforcement (REINF)), St. Louis, MO * 24 September 1975 – honorably discharged from the USAR Control Group Standby * 25 June 1981 – enlisted in the USAR * 7 June 1993 – unit of assignment was inactivated * 7 April 1994 – transferred to the Retired Reserve 4. The applicant provides: * self-authored letter dated 30 November 2016, wherein he states in pertinent part: * during the period of 1 October 1991 through 30 September 1999, the Army and Army Reserves were inactivating (Force Drawdown) military units, causing Soldiers to lose their positions * his unit, the 195th Maintenance Company, was one of the units inactivated * during the February 1994 drill weekend, the Personnel NCO at the 195th HEM Company informed him that due the downsizing, the Army Reserves were offering early retirement benefits at age 60 * he qualified per all the requirements * provides a timeline of the events * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for period ending on 30 October 1973, which shows he completed 4 years of active federal service and was transferred to the USAR * analysis of estimated retirement at age 60 at current number of accrued points and years of service * issued by Headquarters, 310 Theater Army Area Command (TAACOM), Fort Belvoir, VA, which released him from his current assignment and transferred him to the USAR Control Group (Retired) effective 7 April 1994 * printout from U.S. Army Human Resources Command website showing he is assigned to the Retired Reserve * copy of his Chronological Statement of Retirement Points which shows he has 16 years of qualifying service and a total of 2,423 total points creditable. 5. His record contains the following documents: a. PO Number F-100-20, issued by Headquarters, United States Army Reserve Command (USARC), dated 7 June 1993, which inactivated the 195th Maintenance Company, Westminister, MD, the applicant’s unit, effective 15 October 1993. (1) A review of his service records shows he was assigned to this unit at the time of the unit’s inactivation. (2) As a result, he was transferred to the 1007th Light Equipment Maintenance (LEM) Company, approximately 50-55 miles away from the 195th Maintenance Company, on 10 August 1993. A copy of his DA Form 2A (Personnel Qualification Record) shows in section V (Position Data) item 1 (Position Number) that he was assigned as 9990. Table 3-2 (Special Category Position Number (SCPN) definitions- Unit Manning Report codes) defines “9990” as reassignment overstrength, or excess to unit needs. b. Fax and email correspondence from 29 September 1997 to 29 October 1997 between U.S. Army Reserve Personnel Command and 310 TAACOM officials stating the applicant made attempts to transfer from the Retired Reserve after being denied early retirement, to complete 20 years of qualifying service for non-regular retirement. The correspondence states the following: (1) the transition benefits office had no “work up” on the Soldier; (2) the unit did not have a valid position open for him; (3) recruiters were not sure what was required as his date of discharge was 14 January 1994. 6. On 31 August 1998, the applicant petitioned the Board for full Reserve retirement benefits at age 60. On 9 November 1999, the Board denied his request because the applicant failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice. 7. The applicant provided new evidence and his service records contain a copy of the unit inactivation order showing that he lost his position due to the reduction of forces. 8. The applicant is 69 years of age. A review of his ARPC 249-E shows he completed 16 years of qualifying service. 9. The National Defense Authorization Act for Fiscal Year 1993 (NDAA FY93), Public Law 102-484, Title XLIV, Subtitle B – Guard and Reserve Transition Initiatives, dated 23 October 1992, provides for, among other things, Selected Reserve transition assistance. The assistance was initially provided based on a large reduction in forces, effective 23 October 1992 through 30 September 1995, and had been extended through 2001. The assistance included separation pay, SSP, or early qualification for retired pay at age 60. 10. On 11 March 1993, the Deputy Assistant Secretary of Defense (Military Manpower and Personnel Policy) issued a memorandum providing the Service Secretaries implementing guidance for the SRTBP authorized in the NDAA. The guidance provided that the Secretaries may designate the categories of personnel eligible for SSP. The guidance included priority consideration to members who lost their position due to inactivation for existing or projected vacancies with other Selected Reserve units. 11. The SRTB Program was created in order to compensate Soldiers of the Selected Reserve who were losing a paid drill position due to the drawdown of the Reserves. The effective dates of the program were 1 September 1991 to 31 December 2001. The priorities included assignment to any unit within commuting distance within authorized overstrength pending availability of a projected vacancy for a 1-year period. 12. Entitlement to SSP included those members of the Selected Reserve who were: * involuntarily separated from the Selected Reserve * who qualified for non-regular retirement at age 60, but who were not yet age 60, and; * who voluntarily requested transfer to the Retired Reserve 13. Title 31, U.S. Code, section 3702, is the 6-year barring statute for payment of claims by the government. In essence, if an individual brings a claim against the government for monetary relief, the barring statute says that the government is only obligated to pay the individual 6 years from the date of approval of the claim. Attacks to the barring statute have resulted in litigation in the U.S. Court of Federal Claims. In the case of Pride versus the United States, the court held that the Board for Correction of Military Records (BCMR) is not bound by the barring act, that the BCMR decision creates a new entitlement to payment and the 6 years starts running over again, and that payment is automatic and not discretionary when a BCMR decision creates an entitlement. 14. See applicable law, regulations and policies under REFERENCES below. BOARD DISCUSSION: The Board carefully considered the applicant’s request, supporting documents, and evidence in the record and found sufficient evidence to grant relief. The applicant met all the criteria set forth in the Selected Reserve Transition Benefits Program (SRTBP) for a 16-year retirement. With 16 years of creditable service, the applicant qualifies to receive SRTBP benefits, including retirement pay at age 60. Therefore, the board determined that full relief was warranted. 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 that the evidence presented was 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: a. issuing the applicant a 15-year letter (for 16 years of creditable service) b. showing orders were issued in a timely manner to place him in the retired reserve effective 15 October 1993, IAW his unit inactivation orders # F100-20, dated 7 June 1993 c. showing orders were issued in a timely manner to place him on the retired list on 31 January 2010 and he applied for retired pay in a timely manner to be effective 31 January 2010, and d. paying him any unpaid retroactive retired pay as a result of this correction 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. The National Defense Authorization Act for Fiscal Year 1993 (NDAA FY93), Public Law 102-484, Title XLIV, Subtitle B – Guard and Reserve Transition Initiatives, dated 23 October 1992, provides for, among other things, Selected Reserve transition assistance. The assistance was initially provided based on a large reduction in forces, effective 23 October 1992 through 30 September 1995, and had been extended through 2001. The assistance included separation pay, SSP, or early qualification for retired pay at age 60. 2. On 11 March 1993, the Deputy Assistant Secretary of Defense (Military Manpower and Personnel Policy) issued a memorandum providing the Service Secretaries implementing guidance for the SRTBP authorized in the NDAA. The guidance provided that the Secretaries may designate the categories of personnel eligible for SSP. The guidance included priority consideration to members who lost their position due to inactivation for existing or projected vacancies with other Selected Reserve units. 3. On 18 August 1993, by a priority message to all Army National Guard (ARNG) and Army Reserve units, the Office of the Deputy Chief of Staff for Personnel (DCSPER) provided implementation guidance concerning Selected Reserve transition assistance. All of the foregoing guidance was included except the guidance concerning those eligible for SSP. It addressed all soldiers and specified that the message was coordinated with the offices of the Assistant Secretary of the Army (ASA) Manpower and Reserve Affairs (M&RA), National Guard Bureau, and the Office of the Chief, Army Reserve (OCAR). It also stated that Soldiers would only be assigned to an unauthorized or overstrength position for 1 year and then given the option of transfer to the Retired Reserve with entitlement to SSP. 4. The SRTBP was created in order to compensate Soldiers of the Selected Reserve who were losing a paid drill position due to the drawdown of the Reserves. The effective dates of the program were 1 September 1991 to 31 December 2001. The priorities included assignment to any unit within commuting distance within authorized overstrength pending availability of a projected vacancy for a 1-year period. 5. Entitlement to SSP included those members of the Selected Reserve who were involuntarily separated from the Selected Reserve, who qualified for non-regular retirement at age 60, but who were not yet age 60, and who voluntarily requested transfer to the Retired Reserve. Other specifications pertained to those offered positions in other units (those separated based on assignment as overstrength for a period of 1 year), subsequent qualification for retired pay at age 60, those already age 60, and those already qualified for pay or assistance under any other program. Those qualified for SSP would receive five annual payments or until the year in which they reach their 60th birthday, whichever occurred first. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001717 2