IN THE CASE OF: BOARD DATE: 23 October 2020 DOCKET NUMBER: AR20190013924 APPLICANT REQUESTS: correction of his military records to reflect 15 years of qualifying service towards retirement resulting in issuance of a 15 year Notification of Eligibility (NOE) for Retired Pay at Age 60 letter. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self Authored Letter * DARP Form 249-2-E (Chronological Statement of Retirement Points) dated 19 June 1996 * Addendum C to DA Form 4187, dated 15 November 1996 * Order 97-032-014, dated 1 February 1997 * DARP Form 249-2-E dated 15 April 1997 * Selected Reserve Transition Benefit Program * Excerpt from the United States Army Reserve (USAR) Non-Regular Retirement Guide, dated 4 March 2011 * Email * DD Form 108 (Application for Retired Pay Benefits). dated 17 February 2019 * DA Form 5016 (Chronological Statement of Retirement Points), dated 1 July 2019 * Army Human Resources Command (HRC) letter, dated 30 July 2019 * Temporary Early Retirement Authority (TERA) document * Letter appeal to HRC FACTS: 1. The applicant states that he applied for retired pay at age 60 based upon the documentation provided to him, however HRC has altered his DARP Form 249-2-E from 15 years of qualifying service towards retirement to reflect 14 years, 10 months, and 26 days resulting in him being denied entitlement to early retirement pay (nonregular retirement) as stated on Order 97-032-014 which transferred him into the Retired Reserve until 10 March 2020. He contests that it is the unit’s responsibility to ensure the accuracy of the retirement points, ensure a 15 year letter and DARP Form 249-1-E is enclosed and forward to Strength Management. They are also required to provide a DA Form 4187 and addendum C to transfer the Soldier to Retired Reserve and be prevented from earning any more retirement points per the Selected Reserve Transition Benefit Program. a. He was involuntarily reassigned from the Selected Reserve to the Retired Reserve due to his unit’s deactivation. This reassignment was to be consistent with the qualifications required under the Early Retirement Program. His issued and DARP Form 249-1-E reflected 15 years of qualifying service. Page 1 of this document contained a total of 1,105 points and page 2 contained an additional 60 points resulting in a total of 1,165 points. b. In his self-authored letter, he adds that per the email received on 15 July 2019, his issued DARP Form 249-1-E dated 15 April 1997 needs to utilized to correct his DA Form 5016 which now reflects 14 years, 10 months, and 26 days of qualifying service. c. He served in the Idaho Army National Guard for 12 years prior to joining the USAR. While serving in the USAR his unit was deactivated. Apparently HRC is utilizing the date that his unit deactivated (15 March 1997) for their calculation rather than his retirement year end (RYE) date. Per his orders, he was no longer attached to the unit, but instead reassigned to the Retired Reserve and no longer permitted to attend battle assemblies. d. He further contests that the unit was required to provide him with a 15 year letter and a DA Form 4651. These documents were not provided to him nor does HRC have a record of these documents. During his transition counseling occurring during his last attended battle assembly (1-3 November 1996), he was provided with a DARP Form 249-1-E dated 19 June 1996 reflecting a total of 15 qualifying years (1162 points). This information was later updated on 15 April 1997 to reflect the same. At this time he was also informed that based upon his 15 qualifying years he would be eligible for retirement pay upon reaching age 60 because during the current year (1996-1997) he had obtained 60 points towards retirement resulting in a “good year.” He denies ever signing any documentation not consistent with this information. e. Upon filing his retirement paperwork, he was advised by HRC that his records reflected 14 years of service rather than 15. This information was later corrected by HRC resulting in an increase of retirement points from 1105 to 1165 which equated to 15 years of service. f. On 30 July 2019 HRC informed his United States Representative that he (the applicant) failed to acknowledge and follow all policies provided and failed to acknowledge receipt of the required documents. g. He has since exhausted all resources and courses of action to remedy this error. Based upon his birthdate, he would be eligible for receipt of retirement pay in March of 2020 (age 60). In absence of this, both he and his spouse would not be entitled to TRICARE (healthcare) potentially costing him $2000 per month until they reach age 65 whereby they would qualify for Medicare as well as other delayed and or lost veteran benefits. h. This lengthy process has been stressful considering for the past 22 years he has been looking forward to this retirement assuming all things were in order. He asks if he should he have been provided military legal counsel, retirement services, etc., as a veteran. 2. A review of the applicant’s available service records reflects the following: a. On 20 April 1982 he enlisted in the ARNG. b. On 22 June 1994 he was released from the ARNG having completed 12 years, 2 months, and 2 days of service. c. On 22 June 1994 he enlisted in the USAR for 3 years. d. His 16 January 1996 DARP Form 249-2-E reflects 13 years (1029 total points creditable towards retirement). e. On 1 February 1997, Order 97-032-014 was issued reassigning him from the USAR to the Retired Reserve effective 1 November 1996. Additional Instructions on the order state “involuntarily reassigned due to unit deactivation, relocation or reorganization; Reason – “Early Qualification for Retired Pay.” f. On 15 November 1996 he completed a DA Form 4187. Within the Remarks section he indicated that he had been counselled and that his DARP Form 249 reflected 15 years of qualifying service for non-regular retirement. He further acknowledged that due to the inactivation, relocation and or reorganization of his unit he “must” be reassigned. g. His current DA Form 5016, dated 31 August 2020, reflects 14 years, 10 months, and 26 days (1165 points) creditable towards retirement. 3. The applicant provides the following: a. DARP Form 249-2-E (Chronological Statement of Retirement Points) dated 19 June 1996 reflective of 13 years and 1029 total points creditable toward retirement. This document has additional handwritten annotations indicating 15 years – 1162 total points creditable towards retirement. b. Addendum C to DA Form 4187 dated 15 November 1996 reflective of him being counselled concerning his reassignment options based upon his DARP Form 249 which indicated that he had at least 15 years but less than 20 qualifying years of service towards retirement. Further noted is his acknowledgment that if he elected to be transferred into the Retired Reserve with early qualification for retired pay at age 60 he would not be permitted to be reassigned from the Retired Reserve without the approval of the Secretary of the Army (SECARMY). c. Order 97-032-014 dated 1 February 1997 – see 2d. above. d. DARP Form 249-2-E dated 15 April 1997 reflective of 14 years (1105 total points creditable towards retirement; total service (qualifying and nonqualifying) for longevity pay purposes indicates 15 years. e. Selected Reserve Transition Benefit Program reflective of the Special Separation Pay entitlements for Soldiers with 20+ years of service. Under “Other Categories” this document provides that a Soldier with 15-19 years of service will receive retirement pay at age 60. f. Excerpt from the United States Army Reserve (USAR) Non-Regular Retirement Guide dated 4 March 2011 reflective of the applicant specifically drawing attention to what constitutes a “qualifying year” (minimum of 50 points) and how a Soldiers RYE date is established (one year from the date he/she entered the USAR). Under “Early Qualification for Retired Pay” the applicant highlights the requirement that from 23 October 1992 through 30 September 2000, members of the Selected Reserve who completed more than 15 qualifying years of service but less than 20 and are involuntarily separated would be eligible for retired pay at age 60. Further, under the Selected Reserve Transition Benefit Program (SRTBP) he highlights the fact that counseling is required and that Soldiers transferred to the Retired Reserve are prevented from earning retirement points. g. Email reflective of the applicant’s attempts to obtain resolution of his retirement pay eligibility. He was advised to seek an exception to policy because he was not afforded the opportunity to obtain 15 years of creditable service towards retirement. h. DD Form 108 (Application for Retired Pay Benefits) dated 17 February 2019 reflective of his submitted request for entitlement to retired pay. i. DA Form 5016 (Chronological Statement of Retirement Points) dated 1 July 2019 reflective of 14 years, 10 months, and 26 days (1165 total points) creditable towards retirement. j. HRC letter dated 30 July 2019 reflective of them having conducted a thorough review of his military record which revealed that he had 14 years, 10 months, and 26 days of qualifying service for retirement. To be eligible for a 15 year retirement, a Soldier must be medically unfit because of physical disability or serving in a unit that was being downsized, deactivated, or relocated at the time the Soldier attained 15 years. He was therefore referred to the ABCMR. k. Temporary Early Retirement Authority (TERA) document reflective of the guidance associated with this program. l. Appeal to HRC letter reflective of his continued contention with his denied eligibility citing that his RYE date should be utilized in the calculation of his creditable years of service (19 April 1997) rather than the unit’s deactivation and or date of reassignment (1 February 1997) – doing so would result in 15 creditable years towards retirement. This information is contested based on his “Total Service (Qualifying and Nonqualifying) for Longevity Pay Purposes" as noted on his DARP 249-2-E which would indicate 15 years. He has a multitude of questions in contention as to what was provided by HRC. This information has been provided in its entirety for the Board's consideration and review. 4. The applicant did not provide nor does a review of his available military records reflect issued NOE (15 year letter) and or documentation reflective of 15 creditable years of qualifying service towards retirement. 5. See applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: 1. The Board reviewed the applicant's statement, the supporting documents he provided, and evidence from his service record and determined that relief is warranted in this case. 2. The Board noted that the applicant was removed from his active status in the USAR due to unit deactivation and he has been credited with 14 years, 10 months, and 26 days of qualifying service for retirement, merely 1 month and 4 days less than the 15 years required to be eligible for retired pay at age 60. The Board further noted that it appears the applicant was led to believe he was fully qualified for retired pay at the time of his removal from an active status. As a matter of equity, the Board determined the applicant's record should be corrected to show that he remained in an active status in the USAR through 19 April 1997 and he should be issued a notification of eligibility for non-regular retired pay at age 60 based on 15 years of qualifying service. 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 showing he served in an active status in the U.S. Army Reserve through 19 April 1997 and issuing him a notification of eligibility for non-regular retired pay at age 60 based on 15 years of qualifying service. 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 USC, section 12731a (Temporary Special Retirement Qualification Authority) states: a. During the period described in subsection (b) (23 October 1992 – 31 December 2001), 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) (upon request of the member submitted to the Secretary, transfer the member to the Retired Reserve) of that section and provide the member with the notification required, if the member — as of 1 October 1991, has completed at least 15, and less than 20, years of service computed under section 12732 of this title. b. Congress enacted TERA as part of the National Defense Authorization Act of FY 1993, it has been incorporated into Title 10 USC section 12371a, and was offered to any Selected Reserve member who lost his or her paid drill position due to inactivation, relocation, or reorganization of his or her unit during the drawdown period. It did not include members discharged or transferred because they no longer met qualifications for membership. c. The Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay under this chapter. The notice shall be sent, in writing, to the person concerned within one year after the person completes that service. 2. AR 135-180 (Qualifying Service for Retired Pay Non-Regular Service), states: a. Paragraph 2-1, to be eligible for retired pay, an individual need not have a military status at the time of application, but must have: • attained age 60 • a minimum of 20 years of qualifying service computed under Title 10, USC, section 12732; or; • 15 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 b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190013924 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1