BOARD DATE: 13 January 2020 DOCKET NUMBER: AR20170006225 APPLICANT REQUESTS: in effect, correction to Orders 03-155-00025, dated 4 June 2003, to show he was transferred to the Retired Reserve vice discharged from the U.S. Army Reserve. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum, U.S. Army Reserve Personnel Center, dated 30 October 1996, subject: Applicant Notification of Eligibility for Retired Pay at Age 60 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. The applicant states he should have been transferred to the Retired Reserve not discharged from the U.S. Army Reserve (USAR). He provides his 20 Year Letter showing he completed the required years of service for eligibility for retired pay at age 60. 3. With more than 10 years of service in the Regular Army, the applicant enlisted in the USAR on 23 March 1988 for a 3-year period of service in the Reserve Component. A review of his electronic personnel record shows he reenlisted or extended his initial USAR enlistment contract as follows: * on 13 January 1991 for 3 years * on 9 January 1994 for 3 years * on 7 December 1996 for 6 years 4. On 30 October 1996, the USAR Personnel Center issued the applicant a memorandum informing him he had completed the required years of service, 20 years, for non-regular retirement under the provisions of Title 10, U.S. Code, chapter 67. He was informed his eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of creditable service performed unless it resulted from fraud or misrepresentation on his part. He was informed he must earn a minimum of 50 points each retirement year to retain an active status. 5. With the applicant’s reenlistment on 7 December 1996, it established his expiration of term of service date as 6 December 2002. 6. On 6 December 1999 he was promoted to the rank and pay grade of sergeant first class/E-7 in the USAR. 7. The applicant’s DA Form 5016 (Chronological Statement of Retirement Points) shows for the retirement years from March 1996 through March 2003, he earned 50 retirement points or more per retirement year. This record shows he remained an active member of the USAR participating in monthly unit assemblies and annual training. As of 22 March 2003 he had 27 years, 10 months and 21 days of qualifying service for non-regular retirement with a total of 5,931 creditable retirement points. 8. On 4 June 2003, Headquarters, 77th Regional Support Command, USAR published Orders 03-155-00025 honorably discharging the applicant from the USAR effective the date of the order. This order contains the statement, "Soldier was held beyond normal discharge date through no fault of the Soldier." The authority for his discharge is shown as Army Regulation 135-178 (Army National Guard and Reserve – Enlisted Administrative Separations). 9. The U.S. Army Human Resource Center maintains an electronic database known as the Soldier Management System. On 28 January 2013 the applicant emailed the center concerning his retirement and a representative entered notes into the Soldier Management System. The applicant stated, in effect, when he was preparing to retire from the USAR his unit was activated to support operations in the Middle East. He was placed in a "holding pattern" until the unit filled its required manning slots. He states, "The unit just discharged me and never placed me into the retired part." He was advised to seek relief through the ABCMR. 10. The applicant was born in 19XX and he turned 60 years old in 20xx. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief is warranted. The Board noted the applicant's statement regarding being "in a holding pattern" while his unit was preparing for deployment and agreed that the applicant it was probable that the applicant was not properly counseled on his options upon reaching the expiration of his term of service. Given the impact on the calculation of his retired pay, the Board agreed that the applicant would have requested transfer to the Retired Reserve had he been made aware of the option prior to his discharge. Based on a preponderance of the evidence, the Board determined the record should be corrected to show the applicant was transferred to the Retired Reserve effective 4 June 2003 and remained in that status until he was placed on a Retired List. The Board also determined he should receive any additional retired pay he is due as a result of this correction. 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 to show the applicant was transferred to the Retired Reserve effective 4 June 2003 and remained in that status until he was placed on a Retired List. The applicant should also receive any additional retired pay he is due as a result of this correction retroactive to the effective date of his placement on a Retired List. 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, U.S. 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. Title 10,USC, chapter 1223 (Retired Pay for Non-regular Service), section 12731 (Age and Service Requirements), provides that a person is entitled upon application to retired pay if the person is age 60 and has performed at least 20 years of qualifying service. A qualifying year is determined to be a year in which a minimum of 50 retirement points have been credited for a Reserve member. 3. Army Regulation 135-180 (Qualifying Service for Retired Pay Non-regular Service) implements the statutory authority governing what constitutes qualifying service for retired pay for non-regular service in the Reserve Components. a. Chapter 2 states that to be eligible for retired pay, an individual must have attained the age of 60 and completed a minimum of 20 years of qualifying service under the provisions of Title 10, U.S. Code 12732. A qualifying year is defined as a year of service during which a Reservist earns at least 50 retirement points. An individual need not have military status at the time of application. b. Paragraph 2-4 (Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter)) subgraph b states the number of years of creditable service upon which retired pay is computed may be adjusted to correct any error, miscalculation, misinformation, or administrative determination, and when such a correction is made the person is entitled to retired pay in accordance with the number of years of creditable service, as corrected, from the date they are granted retired pay. c. Chapter 4 (Retired Pay) provides the requirements and instructions for applying for retired pay. An application is required with supporting evidence as identified in the regulation. One requirement is a person must provide orders showing he or she was transferred to the Retired Reserve. Once the application is received and certified by AHRC, orders will be issued by the AHRC placing the eligible individual on the Army of the United States retired list and announcing the effective date eligible persons are entitled to retired pay. (1) A member who is transferred to the Retired Reserve will have their high 36 months of pay based on the basic pay rate for their grade in effect the 36 months prior to their retirement date. (2) A member who is discharged and separated from military service after becoming eligible for non-regular retired pay will have their high 36 months of pay based on the basic pay rate for their grade in effect the 36 months prior to their discharge from military service. c. There is a 6 year statute of limitations for back pay of retired pay (31 U.S. Code, section 3702(b)). A claim for retired pay must be filed within 6 years after the date of eligibility for retired pay. If not filed within the 6 year limitation, 1 day’s retired pay will be lost for each day of delay in filing the claim application. For example, if eligibility was attained on 2 July 1989 and the application for retired pay is not recorded by DFAS until 2 September 1995, payment can be made only from 2 September 1989. 4. Army Regulation 140-10 (Army Reserve - Assignments, Attachments, Details, and Transfers), in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers. Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170006225 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1