ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 5 November 2019 DOCKET NUMBER: AR20170003236 APPLICANT REQUESTS: in effect, his status be corrected to retired reserve rather than discharged. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Non-participant in the USAR (U.S. Army Reserve) memorandum, 19 March 1999 * Army Reserve status and address verification, April 1999 * Non-participation in the USAR memo, 21 November 2000 * Election of Options, 28 November 2000 * Honorable Discharge Certificate, 18 January 2001 * Chronological Statement of Retirement Points, 25 August 2005 * Retired Pay approval letter, 14 July 2016 * Orders C07-696357, 14 July 2016 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 served in the Georgia Army National Guard (GAARNG) from 1977-1998. He requested transfer to the USAR Control Group (Individual Ready Reserve (IRR)) effective 1 March 1998. From 1998-2001 he elected the option for "Retired Reserve" on 28 November 2000 and received his honorable discharge dated 18 January 2001. It seems his orders were "discharge" rather than "retirement." He did not realize this until reaching age 60 in 2016 and applying for retirement pay and attempting to get a retired identification card (ID). There was an error made by issuing separation orders rather than retirement orders during the period of November 2000 and receiving his honorable discharge. There was also administrative errors that indicated the he was serving in the ARNG from 1977-1998 and also was serving in the IRR from 1977-2001. Through the efforts of several Soldiers, this has now been corrected but he must request the separation orders be revoked and a new retirement order be issued for him to be placed in retired status for Tricare benefits and to receive an ID card as retired. None of this has had a negative impact on his retired pay. 3. The applicant provides: * Non-participant in the USAR memo, 19 March 1999 stating he was a nonparticipant in the USAR which was an administrative error; his records indicate he did not have 20 qualifying years of service, because of the oversight his name was deleted from the non-participant list * Army Reserve status and address verification, April 1999 to correct any information * Non-participation in the USAR memo, 21 November 2000 stating the requirements to be retained in an active status in the USAR * Election of Options, 28 November 2000 showing he elected transfer to the "retired Reserve" * Honorable Discharge Certificate, 18 January 2001 showing he was honorably discharged from the USAR on 18 January 2001 * Chronological Statement of Retirement Points, 25 August 2005 showing from 2 March 1998 until 18 January 2001 he was only earning membership points * Retired Pay approval letter, 14 July 2016 showing his application for retired pay was approved * Orders C07-696357, 14 July 2016 showing he was retired and placed on the retired list on 27 September 2016 4. A review of the applicant’s service records shows the following: a. He was born in September 1956. Having had prior enlisted service he was commissioned as a reserve commissioned officer on 19 November 1984. b. He served in several leadership positions and assignments. c. Orders 037-001, dated 10 March 1998 shows he was honorably separated from the ARNG and transferred to the USAR Control Group on 1 March 1998. d. Orders D-01-1-3312, dated 18 January 2001, issued the U.S. Army Reserve Personnel Command show he was discharged from USAR on 18 January 2001, in accordance with Army Regulation (AR) 135-178 (Separation of Officers). e. Orders C07-696357, dated 14 July 2016 showing he was retired and placed on the retired list on 27 September 2016. Additional instructions shows he was authorized retired pay under title 10 US Code, section 12731. 5. By law (Title 10, U.S. Code section 12731) a person is entitled, upon application 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. The applicant completed 14 qualifying years of service. 6. Army Regulation (AR) 135-180 (Qualifying Service for Retired Pay Non-Regular Service) states in paragraph 2-1 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 an RC Soldier. During the period October 1991 to December 2001, the requirement to serve the last 8 years in an RC was amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero years. This regulation also specifies, in part, that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service. 7. AR 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers. Chapter 7 relates to the removal of Soldiers from an active status and states that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the retirement orders published on 14 July 2016, from the Human Resources Command, the Board concluded the applicant’s request to be transitioned to the retired reserve was already completed. For that reason, the Board concluded there was insufficient evidence of an error or injustice which warranted correction. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X: 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. Army Regulation (AR) 135-180 (Qualifying Service for Retired Pay Non-Regular Service) states in paragraph 2-1 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 an RC Soldier. During the period October 1991 to December 2001, the requirement to serve the last 8 years in an RC was amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero years. This regulation also specifies, in part, that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service. 3. AR 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers. Chapter 7 relates to the removal of Soldiers from an active status and states that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve. 4. Title 10, U.S. Code, section 12731 provides the legal age and service requirements for age and service for Reserve non-regular retirement. It states that a person is entitled, upon application 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170003236 5 1