ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 16 August 2019 DOCKET NUMBER: AR20190001787 APPLICANT REQUESTS: Correction of his record to show he was issued a 15-Year Letter to qualify for retired pay at age 60. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-written letter, dated 12 October 2018 * request to US Army Human Resources Command (HRC) for correction, with supporting documents * DD Form 108 (Application for Retired Pay Benefits) * copy of a previously submitted DD Form 149, dated 12 December 2016 * copy of a previously submitted DD Form 149, dated 19 July 2017 * denial letter from HRC, dated 24 September 2018 with DA Form 5016 (Chronological Statement of Retirement Points) 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 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 in effect: * he is not eligible for the 20-year letter for retirement because he could not find a unit to serve with after his last active duty assignment * he was supposed to serve 6 years in the US Army Reserves (USAR) but could not find slots in the National Guard/ AR units as a Major (MAJ)/O-4 * he also tried to find Noncommissioned Officers (NCO) slots, to no avail * he was offered a slot in the rank of Private in North Carolina, but travel was not economically feasible from Georgia and working as a teacher in the public schools system 3. A review of the applicant’s records show the following: * 17 March 1978 – appointed as a Second Lieutenant in the USAR * 14 March 1985 – Orders Number 61-27, issued by DOD, Military Division, Office of the Adjutant General, honorably separated him from the ARNG and transferred him to the USAR Control Group (Reinforcement) * 7 November 1986 – relieved from the USAR Control Group (Reinforcement) and reassigned to 3283 USAR School * 22 January 1989 – ordered to active duty in Active Guard/Reserve status for a period of 3 years * 30 June 1992 – honorably released from active duty and transferred to the USAR Control Group (Reinforcement), his DD Form 214 shows he completed 3 years, 5 months, and 9 days of net active service * 9 May 2000 – US Total Army Personnel Command (PERSCOM) notified him that he was considered, but not selected for promotion to Lieutenant Colonel, but if eligible, would be considered for promotion by the next mandatory selection board * 8 March 2001 – PERSCOM notified him he was considered, but not selected for promotion * 1 September 2001 – honorably discharged from the USAR * his record is void of issuance of a 15-Year or 20-Year Letter indicating qualification for retirement pay at age 60, likewise his record does not reflect he was medically disqualified from continued service 4. The applicant provides: * a self-written letter, wherein he states in pertinent part: * he is an honorably discharged veteran of 15 years, 5 months, and 16 days of service * he has appealed to HRC at Fort Knox, KY for a waiver of the 5 years needed to receive a 20-year letter, but was denied on 24 September because he does not have 20 years of service * the Chief of the Retirement Branch at HRC suggested forward his packet to the Board for approval to obtain a 15 year letter, which he has completed * request to US Army Human Resources Command (HRC) for correction, with the following: * letter from the Board wherein he was informed he must first apply for corrections through HRC and exhaust all administrative remedies available to him before the Board could consider his request * letter from Congressional Member’s office, dated 29 January 2016, which references a letter response from the Board regarding his inquiry * DD Form 108 (Application for Retired Pay Benefits), showing his application for retired pay benefits * DA Form 4037 (Officer Record Brief) * Orders R-12-006263A02, dated 30 October 1991, which amended his AGR orders from a period of 3 years, to 3 years, 5 months, and 9 days * AHRC Form 249-E, dated 23 October 2014, which shows he is credited with 15 years of qualifying service towards retirement, he failed to obtain a “good year” on: * 17 March 1984 through 16 March 1985 – 15 membership points * 17 March 1985 through 16 March 1986 – 15 membership points * 17 March 1993 through 16 March 1994 – 1 inactive duty point, 10 extension course points, 15 membership points * 17 March 1994 through 16 March 1995 – 9 extension course points, 15 membership points * 17 March 1995 through 16 March 1999 – 15 membership points each year * 17 March 2001 through 1 September 2001 – 24 inactive duty points, 7 membership points, 14 active duty points * self-written letter to the Board, dated 17 February 2016 * DD Form 149, wherein he requested to be given credit for the 5 years remaining to qualify for a 20 year retirement * DD Form 149 wherein he requested that credit be given to his military record for the remaining 5 years needed to receive his 20 year letter for full retirement pay * HRC letter that states in pertinent part: * to be eligible for retired pay at age 60, under Title 10, USC, sections 12731 and 12737, a Reserve Soldier or former Reserve Soldier must have completed a minimum of 20 qualifying years of service, to be creditable for retirement * an audit of his records show he completed 15 years, 5 months, and 16 days of qualifying service for retirement * accordingly, he is ineligible to receive retired pay * this office denied his application for retired pay and returning the application packet to him * DA Form 5016 (Chronological Statement of Retirement Points), showing he was credited with 15 years, 5 months, and 16 days of qualifying service for retirement 5. The applicant’s records are void of documents indicating he returned to service with the Army National Guard or was denied service in the Army National Guard. His records are also void of any evidence showing he was issued a notification of eligibility for retired pay (15-year letter). 6. On 29 May 2019, HRC reviewed his case and rendered an advisory opinion. An advisory official from the Reserve Component Retirement Branch (RCR) reviewed the applicant's military records and stated the applicant was not eligible for a 15-Year Letter because he did not meet the eligibility criteria. He completed 15 years, 5 months, and 16 days of qualifying service. To be eligible for a 15-year retirement, a Soldier must be medically unfit for duty or serving in a unit that was being downsized, deactivated, or relocated at the time the Soldier attained 15 years. 7. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He did not respond. 8. By law, Reserve Component members are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement. A qualifying year of service for non-regular retired pay is a full year during which a Regular or Reserve member is credited with a minimum of 50 retirement points. 9. The law further states that a member of the Selected Reserve who was medically disqualified for continued service in an Reserve Component or serving in a unit that was being downsized, deactivated, or relocated at the time the Soldier attained 15 years, could be considered as having met the service requirement and could be issued a Notification for Eligibility for Non-Regular Retired Pay at Age 60, 15-Year Letter, if the member completed at least 15 years, but less than 20 years of qualifying service for non-regular retirement purposes BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and an advisory opinion. The Board considered the applicant’s statement, his service record (both active and reserve component), his years of qualifying service and the requirements for issuance of a 15-year letter. The Board also considered the conclusions of the HRC advising official. The Board found that the applicant was not medically disqualified from serving and he was honorably discharged, not due to his unit being downsized, deactivated, or relocated. The Board found and the applicant did not provide any evidence of additional qualifying service. The Board determined that, by preponderance of evidence, the applicant did not meet the requirements to be issued a 15-year letter in order to receive retired pay at age 60. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X 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. 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 Army Board for Correction of Military Records (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. Title 10, U.S. Code, section 12731 (Temporary Special Retirement Qualification Authority) (a) (Retirement with at Least 15 Years of Service), states for the purposes of section 12731 of this title, 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) of that section and provide the member with the notification required by subsection (d) of that section if, as of 1 October 1991, the member has completed at least 15 and less than 20 years of service computed under section 12732 of this title and upon the request of the member submitted to the Secretary, transfer the member to the Retired Reserve. 3. Army Regulation (AR) 135-175 (ARNG and USAR – Separation of Officers) provides policy, criteria, and procedures for the separation of officers of the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR), except for officers serving on active duty or active duty training exceeding 90 days. Paragraph 4-4 (Removal from active status), states and officer in the grade specified below who has completed his statutory: military service obligation, will be discharged for failure, to be selected for promotion after second consideration by a DA Reserve Components selection board: a. A chief warrant officer, W-2 or W-3 (135-155). b. A first lieutenant, captain, or major (AR 135-155)(10 USC 3846). 4. Army Regulation (AR) 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 ARNG, Army National Guard of the United States (ARNGUS) or the U.S. Army Reserve (USAR). a. Chapter 2 provides eligibility criteria and states, in pertinent part, that in order to qualify for non-regular retirement, a member must have completed one of the following: (1) A minimum of 20 years of qualifying service computed under Title 10 USC, section 12732; or, (2) Fifteen years of qualifying service, and less than 20, computed under Title 10 USC, section 12732, if the individual is to be separated because the Soldier has been determined unfit for continued Selected Reserve service, and none of the conditions in Title 10 USC, section 12731b(b) exist. 5. The 15-year notification of eligibility was enacted into law in 1999 under the provisions of Title 10, U.S. Code, section 12731b, and addressed members with physical disabilities that were not incurred in the line of duty. a. When a member of the Selected Reserve no longer meets the qualifications to remain in the Selected Reserve solely because of being unfit due to a physical disability, and has at least 15 but not less than 20 years of service, the Secretary concerned may determine to treat that member as having met the service requirements issuance of a notification of eligibility. b. Effective 12 March 2009, new guidance indicated the Early Qualification Retired Pay at Age 60 provision applied to all Selected Reserve Soldiers whether or not the physical disability was incurred or aggravated in the line of duty. ABCMR Record of Proceedings (cont) AR20190001787 4 1