ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:    BOARD DATE:  14 January 2020 DOCKET NUMBER:  AR20170012553 


APPLICANT REQUESTS: Correction of his record to show: 

.he was transferred to the Retired Reserve effective on the date of his discharge

.issued a Notice of Eligibility for Retired Pay at Age 60 (15-Year Letter)

.election to participate in the Reserve Component Survivor Benefit Plan (RCSBP)



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.Orders Number 141-082, dated 22 July 1994

.National Guard Bureau (NGB) Form 22 (Report of Separation and Record ofService), dated 1 August 1994

.U.S. Army Human Resources Command (AHRC) Form 249-2-E, dated 2 January2009

.NGB Form 23B (Army National Guard (ARNG) Retirement Points HistoryStatement, dated 3 March 2017

.NGB Form 23E-R (Retirement Points Accounting System (RPAS) CaptureWorksheet)

.NGB Form 55 (Honorable Discharge Certificate), dated 1 August 1994

.Email correspondence

.DA Form 2-1 (Personnel Qualification Record)

.Email correspondence number two



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552(b); however, the Army Board for Correction of MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states:

a.He believes he was eligible for early retirement eligibility when he was dischargedin 1994.  His records at the time did not show that he had the required number of 
satisfactory years in order to retire.  In March of 2017, the Michigan ARNG (MIARNG) reviewed his records and corrected several errors.  The resulting new retirement points statement showed that he now had 15 qualifying years.  A law in place at the time of his discharge, Title 10 USC, section 12731a, allowed for members of the Selected Reserve with a minimum of 15 qualifying years to transfer to the Retired Reserve upon request.  The MIARNG's Judge Advocate General informed the Retirement Services section that he was not eligible for retirement since he never requested transfer to the Retired Reserve.  His records did not indicate he was eligible at the time. 

b.He was discharged from the ARNG with 19 years and 6 months of total militaryservice which included service on active duty, the U.S. Army Reserve (USAR), and the ARNG.  However, he did not have 20 qualifying years of service to receive his 20 year letter to qualify for a non-regular retirement. 

c.A review of his records shows there were errors on his NGB Form 23-E-R.  Hesent his records to the retirement section of HRC, Fort Knox, KY.  They verified the errors on NGB Form 23 and instructed him to send the records to the MIARNG G-1 section for review and corrections.  Further, even though he did not have 20 qualifying years of service for a non-regular retirement that regulations show there are provisions for those who have less than 20 years but more than 15 years to qualify for a non- regular retirement (Title 10 USC, subtitle F, paragraph 12731 Temporary Special Retirement Qualification Authority). 

3.A review of the applicant’s official records show the following on:

a.On 1 August 1969, the applicant enlisted in the Regular Army.

b.On 3 February 1972, the applicant was honorably released from active duty andtransferred to the USAR Control Group Annual Training.  He completed 2 years and 6 months of net service. 

c.On 13 February 1977, the applicant enlisted in the USAR.  His record is void of aDD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period of service. 

d.On 8 November 1978, the applicant enlisted in the MIARNG (his record is void ofa DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States) for this enlistment) and was released from the MIARNG for enlistment in the USAR, on 9 March 1979.  NGB Form 22 shows he completed 4 months and 2 days of net service. 

e.On 11 March 1979, the applicant enlisted in the USAR for a period of 6 years.DD Form 4 shows he completed 2 years, 6 months, and 28 days of active military 
service with 5 years, 7 months, and 25 days of inactive military service.  His record is void of a DD Form 214 for this period of service. 

f.On 13 January 1985, the applicant reenlisted in the USAR for a period of 6 years.DD Form 4 shows he completed 2 years, 6 months, and 28 days of total active military service with 11 years, 5 months, and 27 days of total inactive service.  The applicant’s records are void of a DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period of service. 

g.On 20 August 1993, the applicant enlisted in the MIARNG for a period of 6 years.

h.On 22 July 1994, Orders number 141-082, issued by the Department of MilitaryAffairs, honorably discharged the applicant from the ARNG effective 1 August 1994. 

i.On 1 August 1994, the applicant was honorably discharged from the ARNG underthe provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-26y for being medically unfit for retention standards.  NGB Form 22 shows he completed 11 months and 12 days for this period of service with 16 years, 1 month, and 4 days of prior Reserve Component service, and 2 years, 6 months, and 3 days of prior active federal service.   

j.On 22 September 1994, the ARNG current annual statement was preparedshowing the applicant at the time had 14 years, 2 months, and 25 days of creditable service for retired pay. 

4.The applicant provides:

.AHRC Form 249-2-E showing the applicant at the time completed 11 years ofqualifying service for retirement

.NGB Form 23B showing the applicant completed 15 years, 2 months, and 27days of creditable service for retired pay

.NGB Form 23E showing between 8 November 1990 and 20 August 1993 theapplicant was given 15 inactive duty training points per year and 116 active dutypoints

.Discharge Certificate showing the applicant was honorably discharged from theARNG

.Email correspondence wherein the applicant was advised to complete a DDForm 149 for submission to the Board

.DA Form 2-1 providing a brief of the applicant’s military service

.Email correspondence showing the applicant attempted to obtain a 20-YearLetter through the MIARNG and was directed to the Board



5.On 4 December 2019, the NGB reviewed the applicant's records and rendered anadvisory opinion in his case.  After a thorough review, the Chief, Special Actions Branchopined that, it was the opinion of their office that the applicant’s request should bedenied.  While he states that he would have been eligible for early retirement given thelaw that was enacted, however there is no evidence referencing the impact of the 1990sdraw down on him or his unit.  The law was designed to provide the military branch
Secretaries the ability to control military occupational specialty and gradeauthorizations.  Solely having 15-years of service did not entitle him to an earlyretirement.  If evidence showing that the applicant would have been retired becomesavailable then it would be appropriate to authorize the early retirement and transfer tothe Retired Reserves.  The NGB retirement services section and the MIARNG concurswith this recommendation.  A copy of the complete advisory opinion has been providedto the Board for their review and consideration.

6.The applicant was provided with a copy of this advisory opinion to give him anopportunity to respond and/or submit a rebuttal.  He did not respond.

7.Title 10 USC, section 12731a (Temporary Special Retirement Qualification Authority)states:

a.During the period described in subsection (b) (23 October 1992 – 31 December2001), the Secretary concerned may determine to treat a member of the Selected Reserve of a Reserve Component of the armed force under the jurisdiction of that Secretary as having met the service requirements of subsection (a)(2) (upon request of the member submitted to the Secretary, transfer the member to the Retired Reserve) of that section and provide the member with the notification required, if the member — as of 1 October 1991, has completed at least 15, and less than 20, years of service computed under section 12732 of this title. 

b.Congress enacted Temporary Early Retirement Authority (TERA) as part of theNational Defense Authorization Act of Fiscal Year (FY) 1993, it has been incorporated into Title 10 USC, section 12371a, and was offered to any Selected Reserve member who lost his or her paid drill position due to inactivation, relocation, or reorganization of his or her unit during the drawdown period.  It did not include members discharged or transferred because they no longer met qualifications for membership. 

8.NGR 680-2 (Automated Retirement Points Accounting Management):

a.Sets responsibilities and procedures to establish and maintain retirement records,establish the anniversary year, determine service requirements to qualify for retirement for non-regular service, prepare and issue notifications of eligibility for retired pay for non-regular service.   

b.Paragraph 2-4 states Soldiers must earn a minimum of 50 retirement points,regardless of source, in each full anniversary year to have that year creditable towards verification of the total years of qualifying service for non-regular retired pay. 

c.Paragraph 3-2 states ARNG Soldiers in an active status with at least 15, andfewer than 20, years of qualifying service who are disqualified from continued service due to physical disability and meet all other eligibility criteria may be retired.  Soldiers will be discharged from the ARNG and transferred to the USAR for assignment to the Retired Reserve before the 15 year Notification of Eligibility can be generated and issued. 

9.Army Regulation (AR) 140-1 (Army Reserve - Mission, Organization, and Training)shows that USAR control groups include the Retired Reserve which consists of Soldierswho retain their status as Reserves of the Army and who are or have been retired froman active status, or have been assigned at their requests and are otherwise qualified.The Retired Reserve does not accumulate retirement points.

10.Department of Defense Financial Management Regulation section 5404 (Election toParticipate) states any member who is notified of his or her completion of the years ofservice required for retired pay eligibility for non-regular retirement may elect toparticipate in the RCSBP before the end of the 90-day period.  A member who ismarried or has a dependent child, and who receives notice of eligibility for retired pay,after 1 January 2001, is automatically an immediate participant in RCSBP unless themember elects (with spousal concurrence, if required) not to participate or to defer thedecision or delay coverage before the end of the 90-day period.

BOARD DISCUSSION: 



1.The Board carefully considered the applicant’s request, supporting documents andevidence in the records.  The Board considered the applicant’s statement, his record ofservice, the errors and corrections in his record, the review and conclusions of theMIARNG's Judge Advocate General, the provisions in law regarding eligibility forretirement with more than 15 but less than 20 years of qualifying service and the reasonfor the applicant’s separation with less than 20 years of qualifying service for non-regular retirement.  The Board considered the review and conclusions of the NGBadvising official and their endorsement by the NGB retirement services section and theMIARNG.  The Board found that, at the time of discharge, the applicant’s military records incorrectly showed he lacked the minimum service to request transfer to the Retired Reserve.  The Applicant detrimentally relied on these inaccurate records and lost the opportunity to qualify for a non-regular retirement. Based on a preponderance of evidence, the Board determined that an injustice resulted and a correction to the applicant’s record was appropriate to show eligibility for receipt of non-regular retirement pay at age 60.





























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 forcorrection of military records must be filed within 3 years after discovery of the allegederror or injustice.  This provision of law also allows the ABCMR to excuse an applicant'sfailure to timely file within the 3 year statute of limitations if the Army Board forCorrection of Military Records (ABCMR) determines it would be in the interest of justiceto do so.

2.Title 10 USC, section 12731a (Temporary Special Retirement Qualification Authority)states:

a.During the period described in subsection (b) (23 October 1992 – 31 December2001), the Secretary concerned may determine to treat a member of the Selected Reserve of a Reserve Component of the armed force under the jurisdiction of that Secretary as having met the service requirements of subsection (a)(2) (upon request of the member submitted to the Secretary, transfer the member to the Retired Reserve) of that section and provide the member with the notification required, if the member — as of 1 October 1991, has completed at least 15, and less than 20, years of service computed under section 12732 of this title. 

b.Congress enacted TERA as part of the National Defense Authorization Act ofFiscal Year (FY) 1993, it has been incorporated into Title 10 USC, section 12371a, and was offered to any Selected Reserve member who lost his or her paid drill position due to inactivation, relocation, or reorganization of his or her unit during the drawdown period.  It did not include members discharged or transferred because they no longer met qualifications for membership. 

3.NGR 680-2 (Automated Retirement Points Accounting Management):

a.Sets responsibilities and procedures to establish and maintain retirement records,establish the anniversary year, determine service requirements to qualify for retirement for non-regular service, prepare and issue notifications of eligibility for retired pay for non-regular service.   

b.Paragraph 2-4 states Soldiers must earn a minimum of 50 retirement points,regardless of source, in each full anniversary year to have that year creditable towards verification of the total years of qualifying service for non-regular retired pay. 

c.Paragraph 3-2 states ARNG Soldiers in an active status with at least 15, andfewer than 20, years of qualifying service who are disqualified from continued service due to physical disability and meet all other eligibility criteria may be retired.  Soldiers will be discharged from the ARNG and transferred to the USAR for assignment to the 
Retired Reserve before the 15 year Notification of Eligibility can be generated and issued. 
 
4.  AR 140-1 (Army Reserve - Mission, Organization, and Training) shows that USAR control groups include the Retired Reserve which consists of Soldiers who retain their status as Reserves of the Army and who are or have been retired from an active status, or have been assigned at their requests and are otherwise qualified.  The Retired Reserve does not accumulate retirement points. 
 
5.  Department of Defense Financial Management Regulation section 5404 (Election to Participate) states any member who is notified of his or her completion of the years of service required for retired pay eligibility for non-regular retirement may elect to participate in the RCSBP before the end of the 90-day period.  A member who is married or has a dependent child, and who receives notice of eligibility for retired pay, after 1 January 2001, is automatically an immediate participant in RCSBP unless the member elects (with spousal concurrence, if required) not to participate or to defer the decision or delay coverage before the end of the 90-day period. 
 
 
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