BOARD DATE: 10 February 2020 DOCKET NUMBER: AR20180004181 APPLICANT REQUESTS: in effect, placement in U.S. Army Reserve (USAR) Retired Reserve with eligibility for retired pay based on his more than 20 years of service for non-regular retirement by: * issuing him a 20 Year Letter * correcting Orders to show he transferred to the Retired Reserve APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 149 Addendum * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 April 1985 * DD Form 214 for the period ending 30 November 1989 * ARPC Form 249-2-E (Chronological Statement of Retirement Points) dated 21 July 2000 * Orders D-08-041867 dated 3 August 2000 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 believes he was discharged for failure to be promoted after two consecutive promotion boards (to chief warrant officer four) did not select him for promotion. He believes he should have been allowed to revert or convert to his (highest) enlisted grade and retired. He has 20 years of service for a non-regular retirement. He believes he should have been transferred to the Retired Reserve not discharged. In May 1985, he accepted an appointment as a Reserve Commissioned Warrant Officer with more than 11 years of active service as an enlisted Soldier. At the time he accepted his warrant officer appointment, he was a sergeant first class (SFC)/pay grade E-7. He has been searching through Army regulations for guidance, but has not found it. He has looked for guidance through the years and thought he had to accept the fact he had more than 20 years of service without receipt of retired pay. After some thought he decided to apply to this Board to correct the error in his records. He believes there is guidance that allows him to retire and, in effect, collect retired pay. 3. With prior enlisted service in the Regular Army, the applicant was appointed a Reserve Warrant Officer of the Army on 1 May 1985 and simultaneously ordered to active duty. A DD Form 214 shows he was honorably discharged in the rank and grade of SFC/E-7 on 30 April 1985 to accept a commission or warrant officer appointment. This DD Form 214 shows he had competed 11 years, 9 months, and 28 days of prior active service and during the period from 11 January to 30 April 1985 he completed 3 months and 20 days of active service. 4. On 1 May 1985 he entered active duty in the rank and pay grade of warrant officer/pay grade WO1. 5. On 8 December 1989 he was promoted to chief warrant officer two/pay grade CW2 by Orders 203-063, dated 7 December 1988, issued by the U.S. Total Army Personnel Agency. This order shows he was promoted in the Regular Army. 6. On 20 September 1989, the 546th Personnel Service Company at Fort Hood, Texas published Orders 181-17 effectively discharging the applicant from the Regular Army on 30 November 1989. The order states that any temporary commission or appointments held by the applicant would be terminated. 7. On 30 November 1989 he was honorably discharged from the Regular Army for miscellaneous reasons under the provisions of Army Regulation 635-120 (Personnel Separations – Officer Resignations and Discharges), chapter 3. He was issued a DD Form 214 documenting his service from 1 May 1985 to 30 November 1989 showing he had more than 16 years of total active federal service. 8. On 30 November 1989 the U.S. Army Personnel Agency issued the applicant an appointment letter appointing him as a Reserve Warrant Officer of the Army. He accepted his appointment on 8 December 1989. 9. A DARP Form 249-2-E filed in his official military personnel file shows as of 9 September 1992, he had 19 years, 3 months, and 25 days of qualifying service for non-regular retirement with a total of 6,384 cumulative points. He had 2 years of creditable service as a member of the USAR in a troop program unit. 10. His personnel record contains Orders 074-016, dated 12 May 1993, issued by Headquarters, 102nd U.S. Army Reserve Command, St. Louis, Missouri releasing him from his current unit of assignment (325th General Hospital) and transferring him to the USAR Control Group (Reinforcement) effective 12 May 1993. (This order shows his rank as chief warrant officer three (CW3). There is no promotion order to CW3 filed in his official military personnel file.) 11. On 24 June 1996, the U.S. Army Personnel Command notified the applicant by letter that his record was reviewed by a Department of the Army (DA) Reserve Components Selection Board for promotion to chief warrant officer four (CW4). He was considered, but not selected for promotion to CW4. 12. On 14 November 1996, the U.S. Army Personnel Command issued Orders C-11- 654681 releasing the applicant from USAR (Control Group (Individual Mobilization Augmentee)) and transferring him to a USAR troop program unit. This order states the applicant’s transfer request was a voluntary request. 13. On 5 May 1997, Headquarters, 89th Regional Support Command (USAR) issued Orders 125-5 reassigning the applicant from a troop program unit to the USAR Control Group (Reinforcement). This order also states the applicant’s request for reassignment was a voluntary request. 14. On 15 September 1997, the U.S. Army Personnel Command notified the applicant by letter that his record was reviewed by a DA Reserve Components Selection Board for promotion to CW4. He was considered, but not selected for promotion to CW4. 15. On 3 August 2000, the U.S. Army Personnel Command issued Orders D-08- 041867 honorably discharging the applicant from the USAR effective the same date. 16. In the processing of this application, a current (29 January 2020) DA Form 5016 (Chronological Statement of Retirement Points) was printed off the electronic Soldier Management System, a computer system maintained by U.S. Army Human Resources Command. This form shows the applicant completed 21 years of qualifying service with the last 4 years of active service in the USAR as a member of a troop program unit. He has a total of 6,617 points with 6,195 active duty points. It contains the following pertinent information showing his inactive and active points after his second release from active duty date of 19 June 1989, by his retirement year ending date: Beginning Date Ending Date Inactive Duty Points Extension Course Points Membership Points Active Duty Points Qualifying Year Total Points Creditable 19890620 19900619 18 00 15 164 1 197 19900620 19910619 50 30 15 44 1 104 19910520 19920619 53 79 15 31 1 91 19920620 19930619 31 31 15 03 1 63 19930620 19940619 00 00 15 12 0 42 19940620 19950620 00 00 15 00 0 15 19950620 19960619 00 08 15 00 0 23 19960620 19970619 09 00 15 00 0 24 19970620 19980619 00 00 15 00 0 15 19990620 19990619 00 00 15 00 0 15 19990620 20000619 00 00 15 00 0 15 17. Title 10, USC, section 12731 states, in pertinent part, in the case of a person who completed the service requirements for non-regular retirement before 25 April 2005, the last 6 years of qualifying service will not be while a member of a regular component, except that in the case of a person who completed the service requirements before 5 October 1994, the number of years of such qualifying service under this paragraph shall be 8 [in the Reserve Component]. 18. Army Regulation 135-180 (Army National Guard and Army Reserve – Retirement for Non-Regular Service) implements statutory authorities governing the granting of retired pay for non-regular service to Soldiers in the Army National Guard (ARNG), Army National Guard of the United States (ARNGUS) or the USAR. The DA Form 5016 is the document used for USAR Soldiers to record their retirement year ending dates and retirement points earned during a retirement year. This document accounts for battle assemblies (inactive duty training points), annual training points (active duty service), extension point credit (normally for correspondence or on-line learning course completion), and 15 membership points per year. The corresponding document in the ARNG is the NGB Form 23. A qualifying year for non-regular retirement equals a minimum of 50 qualifying retirement points. The U.S. Army Human Resources Command will issue retirement orders transferring a Soldier qualified for non-regular retired pay and associated benefits to the Retired Reserve. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’ statement, his record of service, both active and reserve, his enlisted service and his appointment as a warrant officer, his non-selection for promotion to CW4, his transfer to a TPU and his discharge from the USAR. The Board considered the qualifying service requirements for non- regular retirement and the applicant’s total qualifying service and his service in the reserve component. Based on a preponderance of evidence, the Board determined that the applicant should be issued a 20 year letter and that his separation orders should reflect transfer to the Retired Reserve. 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 relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: - Issuing the applicant a 20-year letter for non-regular retirement, and; - Amend separation Orders D-08-041867 to show the applicant was transferred to the Retired Reserve. 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 (USC), 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 ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, section 12731 states, in pertinent part, in the case of a person who completed the service requirements for non-regular retirement before 25 April 2005, the last 6 years of qualifying service will not be while a member of a regular component, except that in the case of a person who completed the service requirements before 5 October 1994, the number of years of such qualifying service under this paragraph shall be 8 [in the Reserve Component]. 3. Title 10, USC, section 12734 states service in an inactive status may not be counted in any computation of years of service under this chapter. 4. Title 10, USC, section 12735 states a member who would be eligible for retired pay under this chapter but for the fact that that member is under 60 years of age may be transferred, at his request and by direction of the Secretary concerned, to such inactive status list as may be established for members of his armed force, other than members of a regular component. While on an inactive status list, a member is not required to participate in any training or other program prescribed for his component. The Secretary may at any time recall to active status a member who is on an inactive status list. 5. Department of Defense (DoD) Instruction 1215.07 (Service Credit for Non-Regular Retirement) states it is DoD policy, in accordance with Chapter 1223 of Title 10 USC to use uniform procedures to manage the crediting and accounting of active and reserve service of Service members for non-regular retirement. Secretaries of Military Departments will notify each member of the Ready Reserve who has completed the years of service required for retired pay eligibility in accordance with Section 12731(d) of Title 10, USC. a. A Service member must complete 20 creditable years of qualifying service to qualify for non-regular retired pay at, or after, the age specified in Section 12731(f) of Title 10, U.S.C.(1). Any Service member who completed the years of qualifying service before 5 October 1994, must have served the last 8 years of qualifying service in a Reserve Component. (See Title 10, USC, section 12732.) b. Any Service member who completed the years of qualifying service on or after 5 October 1994, but before April 25, 2005, must have served the last 6 years of qualifying service in a Reserve Component. c. Any Service member who completed the years of qualifying service on or after 25 April 2005, has no minimum Reserve Component service requirement. d. Continuous service is not required to meet the 6 or 8 years of qualifying service. e. Exclude any period of service as an Active Component member intervening between periods of Reserve Component service counted toward the 8-year requirement or the 6-year requirement in determining whether the Service member has 20 years of eligible service for non-regular retired pay in accordance with Decisions of the Comptroller General, File B-111903. 6. Army Regulation 135-180 (Army National Guard and Army Reserve – Retirement for Non-Regular Service) implements statutory authorities governing the granting of retired pay for non-regular service to Soldiers in the Army National Guard (ARNG), Army National Guard of the United States (ARNGUS) or the USAR. a. The criteria for retired pay states the minimum age in effect at the time was 60 years old as prescribed by law. b. Qualifying active duty is service pursuant to a call or order to active duty on orders specifying, as the authority for such orders, a provision of law referred to in Title 10, USC, 101(a)(13)(B) (10 USC 101(a)(13)(B)) which is service performed per Title 10 USC 688, 12301(a), 12302, 12304, 12305, 12406 any other provision of law during a war or during a national emergency declared by the President or Congress, as well as service under 10 USC 12301(d). Soldiers should retain source documents for all qualifying periods of service such as DD Forms 214, DD Form 215 (Correction to DD Form 214), DD Form 220 (Active Duty Report) and Defense Finance and Accounting Service (DFAS) Form 702 (Leave and Earning Statements) with active duty/service orders indicating the purpose of the contingency operation or national emergency. c. To be eligible for retired pay an individual need not have military status at the time of application, but must have completed a minimum of 20 years of qualifying service computed under Title 10, USC, 12732. Additional Reserve Component service requirements include: * for Soldiers who completed the years of qualifying service before 5 October 1994, the last 8 years of qualifying service must have been in a component other than a regular component (See Title 10, USC, section 12731.) * for Soldiers who completed the years of qualifying service on or after 5 October 1994, but before 25 April 2005, the last 6 years of qualifying service must have been in a component other than a regular component * for Soldiers who completed the years of qualifying service on or after 25 April 2005, there is no minimum Reserve Component service requirement * the service required does not need to be continuous years of qualifying service * any period of service as a member of a regular component between periods of Reserve service counted toward the 8 or 6 years requirement, will be included in the determination of the Soldier’s years of qualifying service toward eligibility for non-regular retired pay, but will not count toward the last 8 or 6 years of Reserve service d. Under Title 10, USC, 12731a, Reserve component Soldiers who complete the eligibility requirements will be notified in writing within 1 year after completion of the required service in accordance with Army Regulation 140–185 (Training and Retirement Points Credits and Records). The Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) will be issued to Soldiers credited with 20 years of qualifying service and should be issued prior to discharge or transfer to the Retired Reserve. The Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) will be issued by U.S. Army Human Resources Command for all USAR Soldiers. (1) After a Soldier has been notified of their eligibility for retired pay for non- regular service, the Soldier’s eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service performed, unless it resulted directly from the fraud or misrepresentation of the individual concerned. However, 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. (2) Effective control is essential to ensure that qualifying service is accurately computed and for the timely notification of Soldiers concerned. Controls and procedures will be established by the responsible officials to ensure that erroneous administrative determinations are avoided. Direct communication between custodians of personnel records is encouraged when necessary to verify periods of service and retirement point credits. The Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) will be issued in the name of the appropriate official and will be authenticated by the handwritten signature of the official immediately responsible for the determination of the eligibility of the Soldier being notified. A copy of the notification will be filed in the Soldier’s electronic Army Military Human Resource Record (AMHRR). e. The DA Form 5016 is the document used for USAR Soldiers to record their retirement year ending dates and retirement points earned during a retirement year. This document accounts for battle assemblies (inactive duty training points), annual training points (active duty service), extension point credit (normally for correspondence or on-line learning course completion), and 15 membership points. The corresponding document in the ARNG is the NGB Form 23. A qualifying year for non-regular retirement equals a minimum of 50 qualifying retirement points. Appendix B (Qualifying Service) of this regulation provides comprehensive criteria for defining qualifying service for non-regular retirement. f. The U.S. Army Human Resources command will issue retirement orders transferring a Soldier qualified for non-regular retired pay and associated benefits to the Retired Reserve. 7. Army Regulation 135-155 (Army National Guard and the USAR (Promotion of Commissioned Officers and Warrants Officer Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers of the ARNGUS and of commissioned officers and warrant officers of the USAR. This regulation supports the objectives of the Army’s officer promotion system that provides for career progression based on recognition of an officer’s potential to serve in positions of increasing responsibility. As is pertains to USAR warrant officers, it states warrant officers serving in a grade below CW4, in an active Reserve status, may be selected for promotion provided they meet the minimum promotion time in grade and military education requirements not later than the date the selection board convenes. Nonselection for promotion constitutes a failure of selection for promotion. Nonselection by a promotion board is administratively final. a. An initial nonselection for promotion to the next higher Reserve grade will constitute a first failure of selection for promotion to any grade other than CW2, CW5, first lieutenant, and colonel. An officer remaining in an active status following a first failure of selection will again be considered for promotion by the next regularly scheduled board considering that grade and competitive category. b. An officer who twice fails to be selected for promotion to the grade of CW3 or CW4 will not be considered again for promotion, and will be removed from active status unless subsequently placed on a promotion list, selected for continuation, or retained under any other provision of law. A USAR warrant officer who twice fails to be selected for mandatory promotion to CW3 or CW4 will not again be considered for promotion. Twice nonselected warrant officers will be transferred to the Retired Reserve (Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers), or discharged (Army Regulation 135-175 (Army National Guard and Reserve – Separation of Officers). 8. Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Provisions) defines Army National Guard of the United States and U.S. Army Reserve service obligations. It prescribes policies and procedures governing the various types of service obligations and participation requirements. Troop program unit Soldiers are required to participate in at least 48 inactive duty training periods, and no less than 14 days of annual training (active duty). Satisfactory participation is defined as attending all scheduled inactive duty training periods unless excused by a unit commander or granted an authorized absence. A Soldier present at a scheduled training period will not receive credit for attendance unless they are wearing the prescribed unit and present a neat and orderly appearance. They must perform their assigned duties in a satisfactory manner as determined by the unit commander. Soldiers who do not receive credit for attendance will be charged with an unexcused absence for each period. When authorized by a unit commander, a Soldier can perform equivalent training which must be performed in a pay status within 60 days of the absence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180004181 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1