ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 9 January 2020 DOCKET NUMBER: AR20190002217 APPLICANT REQUESTS: * retirement points from 30 June 1986 to 21 December 1989 be credited as A5 time APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * self-authored request for reconsideration * a letter from the Adjutant General (AG) of the Arizona Army National Guard (AZARNG) * excerpt from the National Defense Authorization Act for Fiscal Year (FY) 2008 * Retirement Points Sheet from 2003 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120021168 on 15 August 2013 and AR20140004481 on 20 November 2014. 2. The applicant states: a. This new request is based upon new information and the authority the Board has to remedy an injustice based on Title 32 US Code (USC) 581.3. The Board has the authority to grant relief in this matter. This requests raises new matters that were previously speculated on in the argument of AR20120021168. The matters were explicitly excluded from and not addressed in the previous decision and is based on an injustice created by the Army's previous correction to his record. The decision has left him without any other remedy. This request relies on a lot of the same evidence but incorporates the new confirmations of the G1 and Federal Office of Personnel Management (OPM). b. The applicant is not requesting to correct an error as that issue has already been dealt with. He is requesting a remedy and injustice caused by the timing of the Army's changes that have left him without retirement or other recourse. The previous ruling by the Board was based on federal law. It has become clear to the applicant the original correction created an injustice that cannot be remedied any other way. c. All parties agree the years in question should count towards some retirement either federal civilian or military. When he tried to buy the years back as a federal technician in 2000, he was denied because the years counted towards a military retirement and they can't count towards both. The Army found its mistake and corrected it after he had left federal employment in 2011. Because he is no longer a federal employee, he cannot buy the time back as he should have been entitled to. The military's mistake and time of its correction has unjustly cost him retirement credit for those years. d. He met with the personnel officers of the AZARNG in September 2018 to try to resolve any last issues, explore resigning his commission, or find a way of buying the time back into his federal account. He received a final ruling from the AZARNG G1 Office in an email and what he believes to be a final opinion from the AZARNG Federal Human Resources Office. He did not believe he could ask the Board for an opinion until he had a final decision and he has it now. His understanding is that a service member has 2 years from one of these dates to ask for the decision. The AZARNG is convening a System Review Board (SRB) in January 2019 and since one of the issues is resigning his commission and continuing to serve (which he could not do if he received an unfavorable outcome from the SRB) they had to meet to finally resolve issues that had been lingering. He also wanted to wait until he got a final written opinion that he could not buy back the time as part of his federal retirement. He cannot get anything more definitive than he's gotten. e. The applicant was a federal technician from 1999 to 2005, about 6 and a half years. On the advice of his father who graduated from West Point and retired as a federal employee, he asked his agency human resources department about buying back his military service while at the US Coast Guard Academy. They confirmed he could do so but needed a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his Retirement Points Statement, which he forwarded to OPM. f. Title 5 USC 8331(13) defines federal creditable military service as including service as a cadet at the military academies to include the Coast Guard Academy. OPM's handbook defines military service as being a cadet at the US Coast Guard Academy. g. He provided the required documents but does not have the exact date but it was within the first few months of his employment. Human Resources returned the documents with an explanation of since the years were already counted towards a federal military retirement as per his retirement statement, he could not buy them into a federal civil retirement. At the time, this seemed fair since he was asking for retirement credit and not looking to double dip or receive double credit for the time. h. He left federal employment in 2005 and has no prospect of ever working for the government again. He would have to relocate his family and switch careers to be eligible for federal employment. He's contacted the human resource department who have stated he cannot buy back the time because he no longer works for the federal government. His research indicates they are correct. The AZARNG AG confirmed the same and wrote a letter in support of this effort which has been provided for the Board's consideration. He's attempted to get written confirmation of the verbal communication. OPM would not address him directly but required communication go through his agency. His agency will not address him since he no longer works with them and directs him to OPM. He cannot get any information or evidence more objective than he has. If he had bought back the three and a half years of service towards civil retirement, he would have 10 years of federal service and a pension at the age of 62. Without that, he has nothing. i. The Army mistakenly coded his service at the Coast Guard Academy as A5, and counting toward retirement on his retirement points when he returned to the Army. It remained that way until 2011 or 2012 when the Army caught the mistake and reclassified it as H2, not counting towards retirement. The correction of that mistake and reclassification of that time was the basis for his previous Board appeal and decision. The Board determined that the original classification of A5 was a mistake and the new classification was correct. j. Since the Army made the mistake of adding the points to his retirement sheet and not taking them away from his retirement when he commissioned, he was denied the opportunity to buy the time as a federal employee and has cost him a civil pension through no fault of his own. All parties agree he is entitled to some form of retirement credit for the years of service. At this point, there is no way to fix the civil pension due to the timing of the G1 action. k. It seems unfair that he is denied both military retirement credit and federal retirement credit for those years due to the timing of what the Army admits is its own mistake. Those years should count for either a federal retirement or a military one. He is not trying to double dip; however because of the timing of the mistake, he is left without any retirement credit for his time. l. He raised the question about resigning his commission since the decision to commission was based on his retirement credit and the opinion of the National Guard Bureau (NGB) Retirement Office at the time. He was assured, in writing, as part of pre- commissioning counseling, that he would not lose the retirement points because of his enlisted service. Obviously this was incorrect. He raised the argument if the Army can correct itself then he should be afforded the same opportunity. The Board and G1 both recognized this course of action as a possibility but cautioned that it be done properly. Had he remained enlisted, he would have the credit and would not be retiring. While exploring this possibility with G1 in September 2018, it was discovered because of his deployment related injuries he could not take that course of action. He can continue to serve but cannot revise the decision because he cannot pass the physical. m. The applicant is requesting the Board restore military credit for the time to remedy the unjust loss of civilian retirement credit. Getting military credit seemed fair at the time, and was the reason he was unable to buy back the time when he was a federal employee. 3. The applicant's service records contain the following documents for the Board's consideration: * a DD Form 214 with a separation date of 21 December 1989, which shows: > the applicant was discharged as a Cadet > he was assigned to the United States Coast Guard Academy > he had completed 3 years, 5 months, and 22 days of service > he received an honorable discharge > his type of separation was involuntary resignation - conduct * a retirement points history statement, dated 1 June 2016, which shows: > the output reason - 20 year letter > the years 30 June 1986 through 21 December 1989 are listed with an H2 code > he received no credit for those years 4. The applicant provides the following documents for the Board's consideration: a. a letter from the AZARNG AG, dated 7 June 2013, which states: * after reviewing the applicant's records in May 2011, the AZARNG Human Resources staff removed several years of creditable years from his retirement points * it was unfortunate this was not discovered and addressed years earlier * given the unique circumstances, in the interest of the applicant, he would credit the applicant those years of service; however, he did not have the authority to do so * due to the timing of mismatched information and errors since 1994, the applicant lost the opportunity to buy back the military service time * he believed the Board had the authority to support the applicant's request * the administrative error made was not the fault of the applicant and should not be a reason to disapprove his request b. an excerpt from the National Defense Authorization Act for FY 2008 Section 1115, which states: * civil service retirement system of Title 5 USC was amended by striking "but" and inserting "and includes service as a cadet at the United States Coast Guard Academy * the Federal Employees' Retirement system was also amended to read the same * the amendments applied to any period of service as a cadet c. a Retirement Points Annual Statement, dated 30 May 2003, which shows: * the applicant was a Captain * his time from 30 June 1986 through 21 December 1989 was coded as A5 * he was given 1 year of service for each of the years 5. ABCMR case AR20120021168, contains the following documents, which are available for the Board's consideration: * the applicant's Coast Guard Academy Records * appointment of the applicant as a Cadet * a personnel qualification record from the AZARNG when the applicant was a Second Lieutenant (2LT) * Orders 148-13, Published by the Office of the AG, AZARNG, dated 13 August 1986 discharging the applicant from the AZARNG as a Private (PVT) * an NGB Form 22 (Report of Separation and Record of Service) discharging the applicant as a PVT * a DD Form 4/1 (Enlistment/Reenlistment Document Armed Forces of the United States) showing the applicant enlisted as a Private First Class into the ARNG on 21 May 1994 * a certificate showing the applicant completed Officer Candidate School (OCS) on 22 July 1995 * an application for Federal Recognition, dated 9 April 1995 * a letter, dated 20 November 1997, appointing him as a 2LT effective 11 April 1997 * a letter from NGB, dated 4 December 2006, promoting the applicant to Major effective 1 December 2006 * transcripts from Arizona State University, dated 6 April 2007 * annual retirement statements from 1996 through 2003 showing he was credited for his Coast Guard Academy time * a DD Form 215 (Correction to DD Form 214), dated 29 October 1999 changing item 6 (Reserve Obligation Termination Date) to all zeros * an unsigned memorandum for record from the Deputy G1, AZARNG, dated 20 May 2011, which states: > there were several discrepancies in the applicant's records > he never enlisted in the US Coast Guard but was a cadet > he was discharged from the AZARNG on 1 April 1996 for failure to report > his total years of service should have read over 16 years not over 25 > there were discrepancies in his military education, awards, and on his Department of the Army Photo * a memorandum from a Judge Advocate (JA) of the AZARNG, dated 9 October 2011 in reference to the applicant's retirement points, which states: > multiple years' worth of retirement were improperly deducted from the applicant's record > the applicant was not commissioned through the Coast Guard Academy therefore is entitled to count this time toward retirement eligibility > the retirement points should be returned to the applicant > the language of the relevant statute your regulation do not specifically cover officers who were commissioned by OCS or direct commissioning > where an employment regulation is vague the policy must be interpreted in favor of the employee > Congress did not intend to preclude service members from receiving retirement credit for the time spent at a service academy > the applicant paid for his own college and later received a commission through OCS > the regulation states the H2 code is used for officers who attended a service academy and received a commission from the academy; it says nothing about Soldiers who attended the academy but received their commission through some other source > the more appropriate code for the applicant is coded H4 which covers cadet time when the cadet does not receive a commission from the academy > code H4 does not say no officer appointment from any source > the G1 contested whether coding the applicant as H4 would make a difference > the recoding resulted in the return of the deleted years > the applicant should be recoded to H4 * a supplemental memorandum to the JA's memorandum, dated 10 December 2011, which states: > the supplemental memorandum addresses how the Department of Defense Instruction (DODI) 1215.07 applies to the applicant's case > the DODI contains two provisions one addressing the manner by which an enlisted member's anniversary years should be calculated > the other addresses the manner by which an officer's anniversary years should be calculated > neither provision clearly establishes a procedure that covers the applicant's situation > the DODI covers officers who received their commissions from the service academies > DODI 1215.07 does not cure the ambiguity that exists in the statute or regulation * a retirement points statement, dated 13 December 2011, where the years in question were coded with H4 and the years added back to the applicant's retirement points * a legal review completed by the Staff Judge Advocate (SJA), AZARNG, of the JA's memorandum dated 11 October 2011, which states the SJA concurred with the JA's opinion > a memorandum from the G1, AZARNG, dated 11 February 2012, stating: > the applicant did not get due process with the removal of the points > they were added back to his retirement statement > the applicant had 45 days to prove the points were authorized toward retirement * a memorandum from the applicant, dated 28 February 2012, stating he and his legal representative requested additional information and the legal authority to take the points away * a memorandum from the applicant, dated 23 March 2012, in response to the memorandum from AZARNG G1, which states: > it is true the applicant did not receive due process in the matter > the points were added back to his retirement points in response to the written opinions from the JAs > portraying the memorandum as an attempt to provide due process to the applicant is incorrect > neither one of the legal opinions were based on the absence of due process > since the addition of the points to his retirement points there has not been a change in the regulation or law > the addition of the points is an attempt to retroactively create a record of due process > with the years added back to his retirement points, he had 20 years of service and could retire except for the proposed action of removing the points again > none of the laws and regulations referenced by the G1 provided the legal basis and authority for the removal of the points > G1 has not answered the applicant's question regarding if resigning his commission would add the points back to his record > G1 cited NGR 680-2 dated 15 January 1989 and not the most current version of the regulation which was dated 19 August 2011 * a memorandum from the AZARNG G1, dated 5 July 2012 denying the applicant's appeal to keep the retirement points * a self-authored memorandum for record, dated 25 July 2012, regarding the applicant not receiving information on resigning his commission * an excerpt from DOD 7000.14 Basic Pay summary of changed, dated November 2011 * an undated, unsigned memorandum regarding the retirement points which concluded since the applicant did not graduate from the Coast Guard Academy and was an enlisted Soldier after the academy the points were appropriately counted * an undated advisory opinion from NGB which states a recommendation for disapproval of the applicant's request stating the 1989 version of NGR 680-2 states the H2 code is for a service cadet and no retirement points are authorized if commissioned through any source 6. National Guard Regulation 680-2 (Automated Retirement Points Accounting Management), dated 19 August 2011 states in Appendix L Table 1 code H4 is for service as a Cadet at a Service Academy with no officer appointment and the time is creditable for retirement points. 7. Title 10, U.S. Code Section 971 (Service credit: officers may not count service performed while serving as cadet or midshipman), provides in computing length of service for any purpose, service as a cadet may not be credited to a commissioned officer of the Army. 8. Title 5 U.S. Code Section 8331 (Definitions) Paragraph 13, states “military service” means honorable active service including service as a cadet at the United States Coast Guard Academy. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is warranted. The evidence presented demonstrates the existence of an error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20140004481 on 20 November 2014 to code his retirement points period of service from 30 June 1986 through 21 December 1989 in the MMSI column as A5 instead of H2. ? 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 evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are sufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20140004481 on 20 November 2014 to code his retirement points period of service from 30 June 1986 through 21 December 1989 in the MMSI column as A5 . 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. National Guard Regulation 680-2 (Automated Retirement Points Accounting Management), dated 19 August 2011 states in Appendix L Table 1 code H4 is for service as a Cadet at a Service Academy with no officer appointment and the time is creditable for retirement points. 2. Department of Defense Instruction 1215.07 (Service Credit for Reserve Retirement) states in: a. Paragraph 6.1.4.1. In the case of officers with Reserve service as a cadet or midshipman at a Service Academy or in a Reserve Officers’ Training Corps program, the date for the start of a member’s initial anniversary year will be established by the date the member entered into active service or active status minus any service as a cadet or midshipman. b. Paragraph 6.1.4.2. In the case of enlisted members of the Armed Forces (who served as a cadet or midshipman but who did not later receive or who do not hold a commission as an officer), service as a cadet or midshipman at a service academy shall be included and counted as active duty. 3. Title 10, U.S. Code Section 971 (Service credit: officers may not count service performed while serving as cadet or midshipman), provides in computing length of service for any purpose, service as a cadet may not be credited to a commissioned officer of the Army. 4. Title 5 U.S. Code Section 8331 (Definitions) Paragraph 13, states “military service” means honorable active service including service as a cadet at the United States Coast Guard Academy. // NOTHING FOLLOWS // ABCMR Record of Proceedings (cont) AR20190002217 8 1