ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 25 June 2019 DOCKET NUMBER: AR20180016189 APPLICANT REQUESTS: discharge Orders 04-264-0104 be revoked and he be placed in the Retired Reserves. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (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 would like Orders 04-264-0104 revoked * he requests being assigned to the Retired Reserves for qualifying retired pay at age 60 * upon getting out of the Reserves, he thought he was going into the Retired Reserves * when he went to get his Identification Card, he found out he was not in the Retired Reserves * by changing his status to Retired Reserve, this will help him acquire more points toward retirement and he will be able to use some benefits now instead of later 3. The applicant did not provide any supporting documentation. 4. A review of the applicant’s service records shows: * 22 December 1978 – he enlisted in the Delay Entry Program * 23 August 1979 – he enlisted in the Regular Army (RA) * 23 August 1982 – he was honorably discharged from RA * 22 December 1982 – he enlisted in the United States Army Reserves (USAR) * 23 January 2002 – he received his 20 year letter showing he completed the required years of qualifying reserve service and is eligible for retired pay on application at age of 60 * 30 September 2004 – per orders #04-264-11104, he was honorably discharged from the USAR, however he was held beyond his Expired Term of Service (ETS) date through no fault of his own * he completed 22 years, 9 months and 9 days of total service * his permanent Army records show Archived Records versus Retired Reserves, indicating he was discharged from the USAR versus retired from the USAR 3. Army Regulation (AR) 135-180 (Qualifying Service for retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve components (RC) Soldiers. Chapter 2 provides eligibility criteria and states, in pertinent part, that in order to qualify for non-regular retirement, a member must have attained age 60 and completed a minimum of 20 years of qualifying service. Paragraph 2-8 defines qualifying service and states, in pertinent part, that an RC Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. 4. Army Regulation (AR) 140-10 (Assignments, Attachments, Details, and Transfers) states Soldiers not sooner removed for another reason will be removed when they reach maximum age. For enlisted Soldiers, the removal date will be the last day of the month in which the Soldier reaches age 60. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board discussed the applicant’s statement, the orders discharging him from the USAR, his receipt of a 20-year letter and the absence of an election statement in the records. The Board majority determined that an injustice had occurred and recommends relief. 2. After reviewing the application and all supporting documents, the Board majority 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 amending his 20 September 2004 – orders #04-264-00104, to show that he was transferred to the Retired Reserves vice honorably discharged from the USAR beyond his normal ETS. 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: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 135-180 (Qualifying Service for retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve components (RC) Soldiers. Chapter 2 provides eligibility criteria and states, in pertinent part, that in order to qualify for non-regular retirement, a member must have attained age 60 and completed a minimum of 20 years of qualifying service. Paragraph 2-8 defines qualifying service and states, in pertinent part, that an RC Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. 3. Army Regulation (AR) 140-10 (Assignments, Attachments, Details, and Transfers) states Soldiers not sooner removed for another reason will be removed when they reach maximum age. For enlisted Soldiers, the removal date will be the last day of the month in which the Soldier reaches age 60.