IN THE CASE OF: BOARD DATE: 10 July 2020 DOCKET NUMBER: AR20170013545 APPLICANT REQUESTS: in effect, total retirement points restored for to reflect 1,059 points or 2 years, 10 months, and 29 days between 21 January 2000 and 19 December 2002. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Response to a congressional inquiry reference applicant’s total retirement points, dated 18 January 2007 * Army Human Resources Command (AHRC) Form 249-2-E (Chronological Statement of Retirement Points), dated 22 February 2007 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 15 December 2009 * Department of the Air Force Special Order A-048 – Active Duty Orders, dated 11 January 2013 * Personal Data – Service History dated 14 April 2014 * AHRC Form 249-E (Chronological Statement of Retirement Points), dated 22 July 2014 * Informational Response Enclosed Documents, dated 6 October 2015 * Previous ABCMR case AR20150016004 memo * Memo to AHRC from applicant, 9 August 2016 * Email to Army Review Boards Agency (ARBA) from the applicant, dated 8 April 2019 FACTS: 1. The applicant states: a. He has a reply from AHRC dated 6 October 2015 that indicates his Chronological Statement of Retirement Points correction is correct. He asserts AHRC has repeatedly and egregiously mishandled his service record. The applicant states an AHRC Form 249-2-E should be corrected to reflect the active duty retirement points initially on his record from 21 January 2000 to 19 December 2002. b. He has provided examples as proof that, in addition, show negligence on the part of the Army and/or AHRC that has and continues to negatively affect his personal and professional life. On or around 14 July 2014, AHRC reduced his service “Total Points Creditable” for retirement by 1059 points or 2 years, 10 months, and 29 days. This action was a gross manipulation of his record, and it was executed almost 15 years after the record was initiated and nearly 10 years after he ended his service in the Army. This action was taken without regulatory reference or official correspondence. c. The untimely service record manipulation has caused significant problems with his Air Force record and negatively impacted a promotion opportunity due to a perceived erroneous service record. Ultimately, the lack of fidelity within his record infects every document in his record and negatively impacts his career by destroying the credibility of his record, subverting promotion, and destabilizing career expectations. The latency of the change, coupled with the emotional strain that this situation has personally and professionally caused him, is unjust. d. On 19 December 2006, AHRC caused the Army to erroneously discharge him from active duty. A Congressional inquiry determined the Army mishandled his service record and was responsible for the discharge error. On or around this date, he was informed his Army service records were incorrect and that he could not be employed by any Department of Defense service component until the records were corrected. A Congressional inquiry was submitted and subsequently he was informed AHRC was working to resolve the issue. His understanding was during the 5 month period between December 2002 and April 2007, AHRC rectified his records as he received a new DA 249-E issued in April 2007, and he was authorized to join the Air Force if desired. The unexpected unemployment meant he could not get healthcare for his pregnant wife because it was considered a “prior condition.” The emotional strain personally and professionally was unjust. e. The applicant feels AHRC has demonstrated repeated and egregious mishandling of his service record. AHRC does not have an accurate documented record of his Army service. AHRC cannot show a preponderance of evidence that supports the changes made to his service record on or around 14 July 2014. The Army and AHRC maintain an obligation to provide clear and convincing evidence for gross and belated record manipulations (similar to the “burden of proof” and “statute of limitations” notion). He requests his “Total Points Creditable” for retirement reflect the totals utilized by AHRC until they were modified on or around 14 July 2014. Specifically he requests that the 1059 points that were removed between 21 January 2000 to 19 December 2002 be restored until AHRC can provide actual regulatory evidence and supporting contractual documentation that verify the accuracy of the newly modified record. f. This request is being made as a result of an application to the Army Review Board Agency (ARBA) on 8 October 2015, Docket Number AR20150016004. On 5 August 2016, the Director of the Case Management Division, indicated a letter format request with supporting documentation should be sent to AHRC. The applicant indicated a similar action on or around 2 October 2015 was accomplished, and he received a reply from AHRC on 6 October 2015 that asserted the changes made to his record were correct. The AHRC assertion that his record is correct was not substantiated by any documentation or regulatory reference, only conjecture. The applicant followed up with the individual at AHRC that signed the document, and verbally verified that the AHRC in fact does not have an accurate service record for him. It was recommended he file with ARBA if he felt that there was error or injustice, hence the ARBA request on 8 October 2015. 2. A review of the applicant’s service records reflects the following: a. 21 January 2000 – the applicant enlisted in the United States Army Reserve for 8 years and 0 weeks as a cadet. The additional details of his enlistment/reenlistment included a DA Form 597-3 (Army Senior Reserve Officers’ Training Corps (ROTC) Scholarship Cadet Contract). The DA form 597-3 is not found in his service records. b. Email correspondence between Cadet Command and the Analyst on this case indicates, the DA Form 597-3 is unavailable. As evidence of the 3 year scholarship, Cadet Command provided a DA Form 5315-E, US Army Advanced Educational Financial Assistance Record, showing the applicant attended Virginia Military Institute with a three year scholarship from 1999 to 2002 and received payments from 2000 to 2002. c. The Cadet Command Information Management System showed the applicant received an unpaid 3 year scholarship with an award date of 1 January 1999. After completing the first year, it was upgraded to a paid 2 year scholarship when he contracted on 21 January 2000. His projected commissioning date was 20 December 2002. d. A DA Form 4037 shows the applicant received his appointment on 1 June 2002 as a second lieutenant in the United States Army. e. On 20 December 2002 he was appointed in the Regular Army. f. On 19 December 2006, he was given an honorable discharge from Regular Army and accepted an appointment as a Reserve Commissioned Officer of the Army. g. 18 January 2007 – Orders 018-0011 reflected an amendment to orders 284-0018 indicating that he executed an Oath of Office for a Reserve Appointment into the IRR. It was amended to read – new reporting date 19 December 2006. His order showed the applicant submitted a resignation packet to be forwarded to St Louis for completion of his integration into the Individual Ready Reserve. It also indicates the officer will not resign his commission until completion of his military service obligation. His MSO terminated on 19 December 2010. h. 22 February 2007 – AHRC Form 249-2-E (Chronological Statement of Retirement Points) shows that he has 6 years, 10 months and 29 days qualifying for retirement from 21 January 2000 to 20 January 2007. i. 8 May 2007 – the applicant received an honorable discharge from the United States Army Reserve. j. 15 December 2009 - a DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was released from active duty while serving in the U.S. Air Force Reserve for completion of required active duty training. k. Email exchange from the applicant, dated 2 October 2015, in which he requests AHRC to restore his record of service points until sufficient regulatory evidence and/or documentation is obtained that supports the reduction. He states AHRC reduced his service points by approximately 1059 points or 2 years and 10 months and 29 days (15 years after the fact without supporting documentation). AHRC responded and said his request was received and being processed. l. 6 October 2015 – a response to the applicant from AHRC states his AHRC (Form 249-2-E Chronological Statement of Retirement Points) is correct. The applicant was never in the ROTC Simultaneous Membership Program (SMP) Program. He was in the ROTC Cadet Program. If he feels there is an injustice, they recommended he apply to the ABCMR. m. On 5 August 2016, the Army Review Boards Agency sent a memo to the applicant stating he did not exhaust his administrative remedies. He must submit his request to AHRC. After receiving a response from AHRC and if he believed that an error or injustice still existed, he could apply to the ABCMR. 3. The applicant provides the following: a. On 18 January 2007, the Department of the Air Force responded to a Congressional inquiry pertaining to the applicant’s desire to enter the Air Force Reserve. It was determined the applicant needed to have a DD Form 368 (Request for Conditional Release) so that he could transition into the Air Force Reserve. b. On 22 February 2007, the applicant received an AHRC Form 249-2-E – (Chronological Statement of Retirement Points), that showed he had 6 years, 10 months, and 29 days qualifying for retirement. c. On 15 December 2009, the applicant received a DD Form 214 from the Air Force Reserve that showed under Item 12 Record of Service in: * 12a. Date Entered Active Duty this period: 20 December 2008 * 12b. Separation Date this period: 15 December 2009 * 12d. Prior active service: 9 years, 1 month and 24 days. d. On 11 January 2013, the applicant received Department of the Air Force Special Order A-048 – for active duty that was extended until 31 October 2020 and a note initialed by the applicant that states “reflects service points in question.” e. On 14 April 2014, a Personal Data – Service History showed retirement points that were in question highlighted from 21 January 2000 to 20 January 2003. f. On 22 July 2014, the applicant received a new AHRC Form 249-E (Chronological Statement of Retirement Points) that reduced his retirement point credit, removing his retirement points from 21 January 2000 to 19 December 2002. g. On 6 October 2015 – AHRC responded to the applicant stating his AHRC Form 249-2-E was correct. The applicant was never in the Simultaneous Membership Program (SMP) Program. He was in the ROTC Cadet Program. If he feels there is an injustice, they recommend he apply to the ABCMR. h. On 9 August 2016, the applicant sent a memorandum to AHRC, subject: “Total Points Creditable” Correction, requesting his retirement points be corrected to reflect the inclusion of the initial 1,059 points that were removed. i. On 8 April 2019, the applicant sent an email to ARBA showing how he checked on the status of his case and was told it was still being reviewed and processed. He further adds additional information referencing Title10, USC, Section 1552 (Correction of Military Records) with highlighted areas that state: (1) The Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice. Except as provided in paragraph (2), such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department. The Secretary of Homeland Security may in the same manner correct any military record of the Coast Guard. (2) No correction may be made under subsection (a)(1) unless the claimant (or the claimant's heir or legal representative) or the Secretary concerned files a request for the correction within three years after discovering the error or injustice. The Secretary concerned may file a request for correction of a military record only if the request is made on behalf of a group of members or former members of the armed forces who were similarly harmed by the same error or injustice. A board established under subsection (a)(1) may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice. 4. See applicable guidance below under REFERENCES BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 2. The Board found that, while the erroneous addition of retirement points to his record was unfortunate, he was not authorized any retirement points as an ROTC cadet unless he was serving in the Simultaneous Membership Program, which he was not. By a preponderance of the evidence, the Board determined that AHRC's action to remove retirement points from his record was not an error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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: AR 135-180 (Qualifying Service for Retired Pay Nonregular Service) a. Chapter 2 paragraph 8 (Service Creditable as Qualifying Service) states that a reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. Only Soldiers assigned to an active status in a Reserve Component or individual’s inactive federal service are authorized to earn retirement point credits. When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service. One point for each authorized participation in drills or periods of instruction which conform to the requirements prescribed by the Secretary of the Army. b. Paragraph 2-10 (Computation of Service) states that not more than 60 points per year, including membership points, will be credited for inactive duty training in any one retirement year. 3. AR 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) a. paragraph 1-3. Eligibility. Only members of the Ready Reserve (other than Reserve Officers Training Corps (ROTC) and Delayed Entry Control Group members) and Active Standby Reserve are authorized retirement point credit. As an exception to the above exclusion of ROTC service, potential participants in the Reserve Officers' Training Corps/Simultaneous Membership Program (ROTC/SMP) (those not enrolled in the Advanced ROTC Course) are authorized retirement points credit to be paid for drills in the grade and years of service attained. Participants in the ROTC/SMP, those enrolled in the Advanced ROTC Course, are not authorized retirement points but are authorized to be paid for drills. See AR 601-210, Chapter 10. Participants in the ROTC/SMP Advance Course who are not commissioned or withdraw from the program are authorized retirement points for the time served as a participant. b. Paragraph 1-4. Establishment of Retirement Year. The retirement year once established will not change as long as the member has continuous service in an active status in a Reserve and/or regular component. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170013545 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1