ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20170013746 APPLICANT REQUESTS: in effect, the revocation of the orders, which discharged her form the U.S. Army Reserve (USAR), effective 1 June 2017 and the issuance of orders transferring her to the Retired Reserve, effective 1 June 2017. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders 17-111-00023, dated 21 April 2017 * Email correspondence, dated from 29 June -10 July 2017 * Army National Guard (ARNG) Retirement Points History Statement, dated 7 July 2017 * DA Form 5016 (Chronological Statement of Retirement Points), dated 10 July 2017 * Letter, Army Review Boards Agency, Case Management Division, dated 12 September 2017 * Email, dated 13 March 2019 * Self-authored statement, dated 14 March 2019 FACTS: 1. The applicant states she was blindsided [sic] and surprised by her discharge orders. Her chain of command and the personnel in the military personnel office (S-1) never informed her of the discharge, and they were actively engaging/assisting her in finding a new unit or transferring her to the Individual Ready Reserve (IRR), as her unit was dismantling. She was not aware of the discharge orders until she received email correspondence from the department of Veterans Affairs (VA) on 5 June 2007. She saw the orders for the first time on 6 July 2017, after she pressed her unit and the United States Army Reserve Command (USARC) for a copy of her orders. Her unit, perhaps, overwhelmed with the dismantling efforts, continued to assist her to find a new unit, and informed her she would have to either transfer into the IRR or retire by 30 June 2017. a. The publication and issuance of her discharge orders were unjust and in error because her chain of command and the personnel at the S-1 informed her that they were not aware of the discharge orders prior to or after the publication. b. Additionally, it was unjust to issue her discharge orders because she had completed 20 creditable years of Reserve service 2015 and she did not receive separation or retirement counseling. 2. The evidence of record shows: a. She entered military service as an enlisted Soldier of the USAR on 24 April 1990 and she served in an enlisted capacity in the USAR and Army National Guard (ARNG) from 9 January 1994 until 25 April 1996. b. She had a break in service between 26 April 1996 and 22 February 1997, and she again served in the USAR as an enlisted Soldier from 23 February 1997 to 22 May 1997. c. She served in the United States Navy (USN) as an enlisted member from 23 May 1997 to 31 May 2001. The USN commissioned her and she served as a USN commissioned officer from 1 June 2001 until 28 February 2002. 3. She was appointed as a commissioned officer by the ARNG and the National Guard Bureau extended her federal recognition as a Captain in the Aviation Branch effective 1 March 2002. 4. She was promoted to the rank/grade of major (MAJ)/O-4, as a Reserve commissioned officer of the Army, effective 10 October 2007. 5. Her NGB Form 22 (Report of Separation and Record of Service) show she was honorably discharged from the ARNG on 1 March 2015. 6. Her record contains a letter, Subject: Notification of Eligibility for Retired Pay for Non-Regular Service (20 Years), issued by the ARNG, on 2 March 2015. This letter states, in pertinent part: You have completed the required years of service and will be eligible for retired pay upon your application at age 60 unless you qualify for a reduced eligibility age in accordance with Title 10, U.S. Code, Section 12731 (f)… You are not entitled to retired pay under Title 10, U.S. Code, Section 12731 if you are now or later become entitled to retired pay from an armed force under any other provision of law or to retainer pay as a member of the Fleet Reserve or Fleet Marine Corps Reserve. Your 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 directly from fraud or misrepresentation on your part. 7. Orders 215-030, published by the ARNG on 8 September 2015 honorably discharged her from the ARNG and assigned her to USAR control group (Reinforcement), the IRR. 8. Orders C-03-603073, published by the U.S. Army Human Resources Command (AHRC), on 7 March 2016 released the applicant from assignment to the IRR and reassigned her to USARC Augmentation Unit, Fort Bragg, NC effective 7 March 2016. 9. The applicant provided a series of email correspondence dated between 29 June 2017 and 10 July 2017: a. 29 June 2919- (1) Sergeant First Class (SFC) NLG, from the unit S-1 emailed the applicant to inform her that he spoke to the USARC representative (Ms. SMB) who stated the applicant's points would have to be adjusted before the orders could be changed. (2) The applicant responded to SFC NLG's email, asking what Ms. SMB meant by stating the applicant's point's would have to be adjusted, and asking whether there was a problem with her points, and if so, requesting to know the problem. (3) The applicant emailed Ms. SMB, stating SFC NLG advised her to contact Ms. SMB regarding her inadvertent separation orders. The applicant states she should have received retirement orders. b. 6 July 2017- (1) The applicant emailed Ms. SMB stating that she understood that Ms. SMB would be contacting Mr. DM. The applicant also states that she attached her 20-year letter. (2) Ms. SMB emailed the applicant and provided her with a copy of her orders. Ms. SMB writes: Here is what needs to happen: You will need to contact the Minnesota National Guard… and request a "closed out NGB 23." Once received, send that to me and we will update your retirement points. The current NGB 23 in your iPERMS only shows 15 years and ends 2009. Due to you being a 2 time Passover for promotion, regulation states that you will be discharged the 1st day of the 7th month after the results are published. Therefore you were discharged [1 June 2017]. You did not submit a request to go into the Retired Reserves and your retirement points did not show 20 plus years, therefore USARC had discharged you. Once we get the closed out NGB 23 and your retirement points are updated and it's reflected on your DA 5016, you will then need to request through the Army Review Boards Agency (ARBA)… that the discharge order be revoked and a Retirement order published. Please make sure you provide the DA 5016 (showing 20 years), your 20 Year Letter and the current Discharge Order to ARBA when submitting your inquiry. c. 7 July 2017- (1) The applicant responded to Ms. SMB's email stating, in pertinent part, "Thanks for the email and for sending me the orders, which I'd not received until yesterday. ...I was never informed by anyone in the Reserves, including my unit, of a forced retirement, never counseled; hence I have not receive the retirement briefing, nor gone through the retirement out processing…" (2) Ms. SMB emailed the applicant thanking her for providing the "closed out NGB 23." She also writes: I have updated your retirement points. You now have 20 years creditable and 3925 total retirement points. …I will email you the DA [Form] 5016. …As far as the ARBA request, You will need… your DA 5016… 20 Year Letter and your Discharge Order. You are requesting that the unit that has discharged you to revoke the discharge order and process a retirement order with the same effective date. You can inform ARBA that your records did not reflect that you had 20 creditable years, therefore you were discharged. You were unaware that the National Guard retirement points would not automatically transfer over to the USAR. Now that you have your record corrected, you are asking again that the discharge order be revoked and requesting a retirement order. …you will still submit a retirement pay packet 9-12 months out from your 60th birthday… The difference between discharge orders and retirement orders is that Retired Soldiers receive cost of living adjustments and pay raises that occur while they are in the Retired Reserves and Soldiers that are discharged will receive the retired pay based on the year they were discharged (no cost of living adjustments). d. 10 July 2010 - Ms. SMB emailed the applicant to provide her with a copy of her discharge orders. 10. Army National Guard (ARNG) Retirement Points History Statement, dated 7 July 2017, covering the period from 24 April 1990 through 31 March 2015, credited her with 20 good years for retirement. 11. DA Form 5016 (Chronological Statement of Retirement Points), dated 10 July 2017, covering the period from 24 April 1990 through 1 June 2017, credited her with 20 years, 3 months, and 13 days (3925 total points creditable) for retirement. 12. Orders 17-111-00023, published by Headquarters, USARC, under the provisions of Army Regulation 135-175 (Army National Guard and Reserve – Separation of Officers) on 21 April 2017 honorably discharged her from the USAR, effective 1 June 2017. The additional instructions state, "Officer twice non-selected for promotion to next higher grade, Lieutenant Colonel." 13. On 13 March 2019, the applicant received an email from an Army Review Boards Agency (ARBA) customer service representative explain why it has taken such a long time to complete her case. 14. ARBA received a letter from the applicant dated 14 March 2019, wherein she reiterated the facts and circumstances related to her case and expressed her dissatisfaction with ARBA taking so long to process her case to completion. 15. Army Regulation 135-175 (Army National Guard and Reserve – Separation of Officers), Paragraph 4-3 a(5)(c) states, for a MAJ, removal from an active status will be on the later of the first day of the month after the month in which the officer completes 20 years of commissioned service, or the first day of the seventh month after the approval date of the promotion board report that nonselected the officer for the second time, unless the officer is retained under the provisions of section 12646, 12686, 14701, or 14703 of title 10, USC. If not qualified and transferred to the Retired Reserve on the required date for removal, the officer will be discharged. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, her 20-year letter, emails from the HRC representative, discharge orders and the updated Chronological Statement of Retirement Points. Based on the preponderance of evidence, the Board determined that the applicant met all requirements for a non- regular retirement and an error had occurred when she was discharged; a correction is required. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted.? 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 partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: - revoking Headquarters, United States Army Reserve Command orders 17-111- 00023 dated 21 April 2017 that discharged the applicant from the United States Army Reserves, and; - Publish orders that transfer the applicant to the Retired Reserve effective 21 April 2017. 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. ADMINISTRATIVE NOTE(S): Not Applicable ? REFERENCES: Army Regulation 135-175 (Army National Guard and Reserve – Separation of Officers) prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army. a. Paragraph 2-12 (Substandard performance of duty) states, an officer's failure to keep pace or to progress with contemporaries, such as successive promotion failures or a low record of efficiency, when compared with other officers of the same grade, branch, and length of service authorizes involuntary separation of an officer by the separation authority due to substandard performance of duty. b. Paragraph 4-3a (Removal from an Active status) states, members of the Army Reserve will be removed from an active status with or without the officer’s consent regardless of the length of commissioned service (see AR 140–10) [for non-selection for promotion after a second consideration]. Removal will be by discharge characterized as honorable, transfer to the Retired Reserve (if eligible and the member applies) or, if eligible, transfer to the Standby Reserve (Inactive Status List). (1) Paragraph 4-3 a(5) states an officer in the grade [MAJ] who has completed his or her statutory military service obligation, will be discharged for failure to be selected for promotion after second consideration by a Department of the Army Reserve Component selection board not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time, unless the officer is retained under the provisions of section 12646, 12686, 14701, or 14703 of title 10, U. S. Code. However, an officer will be transferred to the Retired Reserve, if qualified, in lieu of discharge, unless the officer requests not to be transferred. (2) Paragraph 4-3 a(5)(c) states, for a MAJ, removal from an active status will be on the later of the first day of the month after the month in which the officer completes 20 years of commissioned service, or the first day of the seventh month after the approval date of the promotion board report that nonselected the officer for the second time, unless the officer is retained under the provisions of section 12646, 12686, 14701, or 14703 of title 10, USC. If not qualified and transferred to the Retired Reserve on the required date for removal, the officer will be discharged. ABCMR Record of Proceedings (cont) AR20170013746 2 1