IN THE CASE OF: BOARD DATE: 20 February 2020 DOCKET NUMBER: AR20170003308 APPLICANT REQUESTS: correction to the following documents – * DA Form 5016 (Chronological Statement of Retirement Points) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 April 2006 to show the date he entered active duty as 9 December 2002 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 4 (Enlistment/Reenlistment Document) dated 27 August 1999 * U.S Navy Officer Candidate School (OCS) Service Agreement dated 27 August 1999 * DD Form 214 for the period ending 17 August 2000 * U.S. Navy Oath of Office dated 18 August 2000 * Department of the Army Orders A-10-295336 dated 25 October 2002 * Memorandum, subject: Appointment as a Reserve Commissioned Officer of the Army, dated 28 October 2002 * DA Form 71 (Oath of Office – Military Personnel) dated 14 November 2002 * DD Form 214 for the period ending 8 December 2002 * Separation Orders dated 22 February 2006 * DD Form 214 for the period ending 30 April 2006 * Memorandum, subject: Appointment as a Reserve Commissioned Officer of the Army dated 15 November 2011 * DA Form 71 dated 15 November 2012 * Orders C-03-203433 dated 5 March 2012 * DA Form 5016 dated 8 February 2017 FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, United States Code, section 1552(b); however, the 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. Concerning correcting his DD Form 214 for the period ending 30 April 2006, it was corrected by Army Docket Number AR20110021359 dated 8 May 2012. In his 2011 application he requested correction to Item 12a (Date Entered AD [Active Duty] This Period) of his 2006 DD Form 214. The Board granted approval, subsequently a DD Form 215 (Correction to DD Form 214) was issued on 14 July 2012 correcting Item 12a to show he entered active duty on 9 December 2002. A review of his electronic military personnel record shows a copy of the record of proceedings and its associated DD Form 215 are appropriately filed. As this specific issue was favorably closed by an earlier decision, it will not be addressed within this record of proceedings. 3. The applicant states upon his release from active duty upon completion of his required active duty service obligation, he was transferred to the U.S. Army Reserve (USAR) Individual Ready Reserve (IRR). He did not resign his commission nor did he receive orders discharging him from the USAR IRR. In 2012, he returned to the active USAR and was assigned to a troop program unit. He contacted the U.S. Army Human Resources Command (HRC) for assistance to correct his record. Personnel at HRC could not locate discharge orders and recommended he apply to this Board. This error in his record is effecting his retirement points, years of service and his pay. He had no break in service and requests correction to his record to show he had no break in service. He states the 5 years missing from his record is negatively effecting him. 4. With prior enlisted active service in the U.S. Navy (USN), the applicant was commissioned an ensign/pay grade O-1 on 18 August 2000 and entered active duty as a commissioned officer. 5. Prior to his release from the USN, the U.S. Total Army Personnel Command issued Orders A-10-295336 ordering him to active duty as a first lieutenant/pay grade O-1 effective 9 December 2002. This order shows he was obligated to serve 3 years active service in a voluntary indefinite status. 6. On 28 October 2002, the U.S. Army Total Personnel Command issued the applicant a memorandum appointing him as a Reserve Commissioned Officer of the Army under Title 10, U.S. Code, sections 12201 and 12203. This memorandum appointed him for an indefinite term. The governing regulation is shown as Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army). He was directed to execute an oath of office and return it for filing in his official record. 7. On 8 December 2002 he was honorably released from the USN in the rank of lieutenant junior grade/pay grade O-2 for the purpose of transferring to the U.S. Army. He was issued a DD Form 214 for this period of active USN service. The narrative reason shown on his DD Form 214 was due to an interdepartmental transfer. It shows he completed 2 years, 3 months and 21 days of commissioned service. 8. Headquarters, U.S. Infantry Center at Fort Benning, Georgia issued Orders 053- 2210 releasing the applicant from active duty effective 30 April 2006 and assigning him to the USAR Control Group (IRR). His terminal date of Reserve obligation is shown as 19 May 2008. 9. Accordingly, the applicant was honorably released from active duty on 30 April 2006 and issued a DD Form 214 documenting his service in the Regular Army (RA). His narrative reason for separation is shown as completion of required active service. He was transferred to the USAR Control Group (IRR). His Reserve obligation date is shown as 19 May 2008. As of his separation date he had more than 5 years of commissioned service combining his USN and RA commissioned service. 10. On 24 April 2009, a DD Form 215 was issued correcting his 2006 DD Form 214 to show award of the Combat Infantryman Badge and the Iraq Campaign Medal with two bronze service stars. 11. On 14 July 2012, a second DD Form 215 was issued correcting Item 12a (Date Entered AD This Period) to show his entry date as 9 December 2002 vice 28 October 2002 and item 12c (Net Active Service This Period) to show 3 years, 4 months, and 22 days of commissioned service. 12. The Soldier Management System (SMS) on the HRC Integrated Web Service (IWS), Major Personnel Actions section, shows he was discharged from the USAR on 16 September 2007. There are no military orders supporting this electronic transaction within his military personnel file. 13. On 15 November 2011, HRC issued the applicant a memorandum appointing him as a Reserve Commissioned Officer of the Army for an indefinite term. He was directed to complete an oath of office and submit it to HRC. On 15 February 2012 the applicant executed an oath of office as shown on his DA Form 71. 14. On 8 March 2012 Orders C-03-203433 were issued by HRC showing the applicant was appointed and assigned to a USAR troop program unit effective 12 February 2012. This order shows his pay entry base date (PEBD) as 6 December 2005. 15. The applicant provided the following evidence that was not previously considered in this record of proceedings. A DA Form 5016 dated 8 February 2017 showing he had a total of 9 years, 8 months, and 13 days of qualifying service for non-regular retirement. His DA Form 5016 documents his USN service and his Regular Army service through 30 April 2006. a. It shows for retirement year ending dates of – * 26 August 2006, he earned only 5 membership points * 26 August 2007, he earned only 15 membership points * 19 May 2008, he earned only 11 membership points b. It shows he had a break in service from 20 May 2008 to 14 February 2012. His retirement year ending date was changed to 14 February of each successive year of service. His DA Form 5016 records the following retirement year ending dates with total points creditable as follows including 15 membership points per year: * 14 February 2013, total creditable points equals 61 * 14 February 2014, total creditable points equals 89 * 14 February 2015, total creditable points equals 103 * 14 February 2016, total creditable points equal 101 16. On 25 November 2019, the staff of the Army Review Boards Agency requested HRC review and provide an advisory pertaining to the applicant’s 2017 application. On 22 January 2020 HRC, Personnel Actions Branch, responded by memorandum. It states from their review it appears the applicant was discharged in the electronic system with an effective date of 16 September 2007. However, his record contains no supporting documentation to support this transaction. HRC acknowledges the applicant signed a DA Form 71 effective 14 November 2002. He served in the Regular Army and was released from active duty on 30 April 2006. HRC states there are no supporting documents indicating the applicant resigned his commission nor requested an unqualified resignation. It states, "With the presumed discharge order, the action created a break in service for [the applicant]. He was subsequently reappointed and accepted back into the United States Army Reserve on 15 February 2012." The advisory concludes by stating that if it were directed, HRC would remove the applicant’s break in service and credit the period from 2007 through 2012 as a reserve status. After a correction is directed, it will also update any other required administrative data. 17. As required by law a copy of the advisory was mailed to the applicant for his review and rebuttal. He did not respond. 18. Title 10, U.S. Code, section 12683 precludes the involuntary separation of a Reserve component officer with five or more years of service as a commissioned officer except on the approved recommendation of a board of officers convened by an authority designated by the Secretary concerned or by the approved sentence of a court-martial. 19. Department of Defense Instruction (DODI) Number 1215.07 (Service Credit for Non-Regular Retirement) states the start date month and day for each successive anniversary year will not change unless the service member has a break in service. A member who transitions directly (next day) from the active component to the Reserve component is not considered a break in service, accordingly, that member’s anniversary date will not change. A service member who returns to an active status in the Reserve component after a break in service will have a revised anniversary year. The anniversary year start date will change to the return or reentry date. 20. Army Regulation 135-178 (Army National Guard and Reserve – Separation of Officers) prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army. Reserve component officers will be separated only by the Secretary of the Army, commanders specified in this regulation under conditions set forth in this and other pertinent regulations and commanders specified in directives of the Secretary of the Army. Discharge terminates the individual’s remaining statutory military service obligation unless for the purpose of immediate reentry. Orders announcing discharge will be issued in accordance with Army Regulation 600-8-105 (Military Orders). A Reserve component officer who has at least 5 years of service as a commissioned officer may not be discharged without his or her consent, except under an approved recommendation of a board of officers or by an approved sentence of a court-martial. BOARD DISCUSSION: 1. After reviewing the application, the supporting documents, the records, applicable regulations, and the facts above, the Board found that relief is warranted as recommended in the Board Determination and Recommendation below consistent with the advisory. 2. It is noted that the applicant’s request to correct his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 April 2006 to show the date he entered active duty as 9 December 2002 was previously granted by the ABCMR and so corrected by case AR20110021359 dated 8 May 2012. A DD Form 215 was issued to make this correction. The DD Form 215 is in the applicant’s military personnel records. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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. Removing the applicant’s break in service from 2007 through 2012 b. Crediting the applicant for the period from 2007 through 2012 as a reserve status c. Correcting his DA Form 5016 (Chronological Statement of Retirement Points) to show membership points for the period 2007 through 2012 c. Updating related affected administrative data 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 140-185 (Army Reserve – Training Requirement Points Credits and Unit Level Strength Accounting Records) contains Army policy for USAR training and retirement point credit. Retirement point credit is authorized for Reserve component members in active Service Ready Reserve, in an active status as defined in Title 10, U.S. Code, section 10141, and voluntary and involuntary inactive duty training. Retirement point credit is not authorized for members of the Reserve component in an inactive status under Title 10, U.S. Code, section 10152 pursuant to Title 10, U.S. Code, section 12734(a). a. A qualifying year of service for non-regular retired pay is a full year during which a Reserve component member is credited with a minimum of 50 retirement points. Except as otherwise provided by law, an accumulation of 20 years is one requirement necessary to qualify for non-regular retired pay. b. The criteria for establishing the service requirement for a satisfactory year of service for non-regular retirement per Department of Defense Instruction (DODI) Number 1215.07 (Service Credit for Non-Regular Retirement) and changing the anniversary year ending date are as follows: (1) The full-year periods used for the crediting of qualifying years for non-regular retirement must be based on the anniversary years. Anniversary year periods are calculated from an anniversary date. The anniversary date is the date the Service member entered into active service or active status in a Reserve component. (2) The month and day for each successive anniversary year will not be adjusted unless the Service member has a break in service. A break in service occurs only when a member transfers to an inactive status list, the inactive National Guard, a temporary disability retired list, the Retired Reserve, or is discharged for longer than 24 hours. There will not be a break in service if the Service member transfers directly to another active component or Reserve component. When a Service member with a break in service returns to an active Reserve status or to active service, the revised anniversary year start date will be the date of return or reentry. (3) When the anniversary date shown on any authorized DA Form 5016 is incorrect the Soldier's unit of assignment should submit a request for action to HRC via encrypted email for processing. c. The limitations on the number of points that may be credited to a Soldier during an anniversary year are as follows: * maximum of 365 (366 during leap year) points * no more than one retirement point may be awarded for any day in which the Soldier is on active duty (A Soldier in active service may not receive retirement points for other activities performed concurrently.) * retirement points credited for activities other than active service or funeral honors duty may not exceed * for any anniversary years closing before 23 September 1996, 60 retirement points * for anniversary years closing on or after 23 September 1996 but before 30 October 2000, 75 retirement points * for anniversary years closing on or after 30 October 2000 but before 30 October 2007, 90 retirement points. * for anniversary years closing on or after 30 October 2007, 130 retirement points d. A maximum of two retirement points may be awarded in 1 calendar day for any activity or combination of activities. e. Inactive duty training (IDT) will be either 4 hours in length for one retirement point or 8 hours in length for two retirement points, with the exception of the 2-hour IDT funeral honors duty. f. Partial year – if a Soldier is separated or removed from an active status during a retirement year, the Soldier may be credited with a proportionate maximum number of IDT points for that year per DODI 1215.07. g. Membership – Soldiers are awarded 15 membership points for each year in an active status. 4. DODI 1215.07 states the start date month and day for each successive anniversary year will not change unless the service member has a break in service. A member who transition directly (next day) from the active component to the Reserve component is not considered a break in service, accordingly, that member’s anniversary date will not change. A service member who returns to an active status in the Reserve component after a break in service will have a revised anniversary year. The anniversary year start date will change to the return or reentry date. 5. Army Regulation 135-178 (Army National Guard and Reserve – Separation of Officers) prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army. Reserve component officers will be separated only by the Secretary of the Army, commanders specified in this regulation under conditions set forth in this and other pertinent regulations and commanders specified in directives of the Secretary of the Army. Discharge terminates the individual’s remaining statutory military service obligation unless for the purpose of immediate reentry. Orders announcing discharge will be issued in accordance with Army Regulation 600-8-105 (Military Orders). A Reserve component officer who has at least 5 years of service as a commissioned officer may not be discharged without his or her consent, except under an approved recommendation of a board of officers or by an approved sentence of a court-martial. 6. Title 10, U.S. Code, section 12683 precludes the involuntary separation of a Reserve component officer with five or more years of service as a commissioned officer except on the approved recommendation of a board of officers convened by an authority designated by the Secretary concerned or by the approved sentence of a court-martial. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003308 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1