IN THE CASE OF: BOARD DATE: 8 June 2020 DOCKET NUMBER: AR20190014785 APPLICANT REQUESTS: This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the United States Court of Federal Claims. The Court directs the ABCMR to reconsider the applicant's request for correction of his records from a regular retirement to a non-regular retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * ABCMR Docket Number AC95-07081, dated 3 April 1996 * ABCMR Docket Number AR20140015803, dated 28 May 2015 * ABCMR Docket Number AR20160008917, dated 4 October 2018 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 AR20160008917 on 4 October 2018. 2. The applicant filed his original ABCMR application in 2015. At that time his regular retirement had been approved. The ABCMR decision in May 2015 denied his relief for converting his regular retirement to a non-regular retirement. The applicant then filed for a reconsideration of his case with the Board in April 2016. The ABCMR decision in October 2018, again, denied his relief for converting his regular retirement to a non- regular retirement. The applicant then filed the instant lawsuit. Therefore, the parties asked to remand the case for the ABCMR to hear and reconsider the conversion of the applicant’s regular retirement to a non-regular retirement. Both parties requested that the Court grant the motion to voluntarily remand the case to the agency for further action and stay proceedings until a determination is rendered by the ABCMR. A federal agency's motion for a voluntary remand is commonly granted because it allows an agency to correct its own potential errors without expending the resources of the court in reviewing a record that may be incorrect or incomplete. The remand will cover new matters that were not previously before the ABCMR for consideration. 3. The applicant is 66 years of age at the time of this remand. 4. A review of the applicant’s official records show the following: a. On 26 March 1975, the applicant enlisted in the Regular Army (RA). b. On 30 May 1977, the applicant was honorably discharged from active duty for immediate reenlistment in the RA. A DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years, 2 months, and 5 days of net active service, and 1 month and 15 days of prior inactive service. c. On 31 May 1977, the applicant reenlisted in the RA. d. On 18 October 1978, Orders Number 202-12-A-370, issued by Headquarters, U.S. Army Aviation Center and Fort Rucker, AL, ordered the applicant to active duty for a period of 3 years, effective 22 February 1979. e. On 10 January 1979, the applicant was honorably discharged from active duty. He completed 1 year, 7 months, and 10 days of net active service, with 2 years, 2 months, and 5 days of prior active service, and 1 month and 15 days of prior inactive service. f. On 11 January 1979, the applicant was appointed as a Reserve warrant officer. He was concurrently called to active duty by Orders Number 202-12-A-370. g. On 19 December 1980, Orders Number 354-260, issued by Headquarters, 7th Infantry Division, Fort Ord, CA, promoted the applicant from the rank/grade of warrant officer one to chief warrant officer two (CW2). h. On 10 January 1982, the applicant was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). He completed 3 years of net active service, with 3 years, 9 months, and 15 days of prior active service, and 1 month and 15 days of prior inactive service. i. On 16 January 1982, the applicant was appointed as a Reserve CW2 in the Minnesota Army National Guard (MNARNG). j. On 9 March 1982, Orders Number 29-5, issued by the MNARNG, assigned the applicant to Headquarters and Headquarters Detachment, MNARNG. k. On 23 March 1982, Orders Number C-03-909874, issued by the Office of the Adjutant General, reassigned the applicant from the USAR Control Group (Reinforcement) and assigned the applicant to the MNARNG for appointment, effective on 15 January 1982. l. On 24 October 1984, Orders Number 215-5, issued by the Office of the Adjutant General, relieved the applicant from the assistant operations officer position, ARNG training site Camp Ripley, MN, and assigned him to the safety officer position, ARNG training site Camp Ripley, effective 1 October 1984. m. On 3 February 1988, by memorandum, the applicant was promoted to the rank/grade of chief warrant officer three (CW3). n. On 15 December 1990, the applicant completed DA Form 160 (Application for Active Duty), indicating he did not have any restrictions on duty assignments, and was available January – March 1991 on receipt of orders. o. On 1 February 1991, Orders Number A-92-999098, issued by the Total Army Personnel Command (PERSCOM) (now the U.S. Army Human Resources Command), ordered the applicant to active duty for a period of 4 years as an obligated volunteer officer, with a reporting date for temporary duty on 19 February 1991. He was further assigned to 18th Airborne Corps, Fort Bragg, NC, effective 2 April 1991. p. On 6 February 1991, the applicant was honorably released from the ARNG. q. On 20 January 1993, the applicant was appointed as a CW3 in the Reserve component and executed an oath of office. r. On 5 October 1994, Orders Number 70-1-A-96, issued by PERSCOM appointed the applicant as a RA warrant officer. His appointment as warrant officer in the Reserve component was vacated. On 27 December 1994, he executed an oath of office. s. On 26 January 1996, Orders Number 026-0010, issued by Headquarters, 1st Infantry Division and Fort Riley, KS, reassigned the applicant to the transition point for transition processing. After processing, he was discharged from the RA, effective 1 March 1996. t. On 1 March 1996, the applicant was honorably discharged from active duty by reason of non-selection for permanent promotion and transferred to the USAR Control Group (Reinforcement). He completed 5 years and 25 days of net active service for this period of service with 12 years, 2 months, and 14 days of prior active service, and 3 years, 9 months, and 11 days of prior inactive service. u. On 3 May 1996, the applicant was appointed as a CW3 in the MNARNG and executed an oath of office. v. On 27 December 1996, Orders Number 362-810, issued by the Office of the Adjutant General, Saint Paul, MN, promoted the applicant to the rank/grade of chief warrant officer four (CW4), effective on 4 December 1996. w. On 30 April 1998, Orders number 120-005, issued by the National Guard Bureau (NGB), ordered the applicant to active duty in the Active Guard/Reserve from 21 May 1998 – 31 October 1999. x. On 3 August 1999, Orders Number 216-001, issued by the NGB, retired the applicant from active duty effective on 31 October 1999, with placement on the Retired List effective 1 November 1999. He was voluntarily retired from the ARNG under Title 10, United States Code (USC), section 1293 (20 or more years as a warrant officer). y. On 31 October 1999, the applicant was retired by reason of sufficient service for retirement. He completed 2 years and 1 month of net active service with 18 years, 10 months, and 20 days of total prior active service, and 3 years and 9 months of prior inactive service. A DD Form 214 (Certificate of Release or Discharge from Active Duty), item 25 (Separation Authority)m shows the authority for separation was Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), paragraph 6-14c(1) or (2) or D or E. z. On 20 February 2000, Special Orders Number 11, issued by the NGB, withdrew the applicant’s Federal recognition effective 31 October 1999. aa. His NGB Form 23b (ARNG Retirement Points History) contained in his official records shows the following: * he served in the USAR from 11 February through 25 March 1975 (non- creditable) * he served in the RA from 26 March 1975 through 10 January 1982 * he was a member of a USAR Control Group from 11 – 15 January 1982 * he was an ARNG unit member from 16 January 1982 – 29 May 1989 * he served on active duty under Title 32 USC (ARNG) (state controlled) from 30 May – 30 September 1989 * he was an ARNG unit member from 1 October 1989 – 1 January 1990 * he served on active duty under Title 32 USC (state controlled) from 2 January – 16 March 1990 * he was an ARNG unit member from 17 March – 31 December 1990 * he served on active duty under Title 32 USC (state controlled) from 1 January – 6 February 1991 * he was a Reserve member on active duty from 7 February 1991 – 24 December 1994 * he was a member of the RA from 25 December 1994 – 1 March 1996 * he was a member of a USAR Control Group from 2 March 1996 – 2 May 1996 * he was an ARNG unit member from 3 May 1996 – 9 March 1997 * he served on ARNG active duty under Title 10 USC (NGB controlled) from 10 March – 29 September 1997 * he was an ARNG unit member for 30 September 1997 * he served as an ARNG active duty under Title 10 USC, NGB controlled from 1 October 1997 – 31 October 1999 bb. On 27 April 2016 (ABCMR Docket Number AR20160008917), through counsel, the applicant petitioned the Board to convert his regular retirement to a non-regular retirement retroactive to 11 February 2013. On 4 October 2018, the Board denied his request. The Reserve Component Retirement (RCR) Branch provided an advisory opinion with this petition that states: (1) This response is in reply to an advisory opinion request for the applicant in reference to his request to have his RA retirement converted into a non-regular retirement. The RCR has reviewed the applicant's military records. The applicant completed 24 years, 8 months, and 20 days. Once a Soldier achieves 20 years of active service they are no longer entitled to retire with a non-regular retirement. Per Title 10 USC section 12731(a)(3), in the case of an individual who completed the service requirements of paragraph (2) before 25 April 2005, the individual must have performed the last six years of qualifying service while a member of any category named in section 12732(a)(1) of this title, but not while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve, except that in the case of a person who completed the service requirements of (2) before 5 October 1994, the number of years of such qualifying service under this paragraph shall be eight. (2) The applicant's last six years were not in a reserve status. It is the opinion of the RCR Branch that the applicant is not eligible to convert his RA retirement to a non- regular retirement. The applicant's request was denied by the ABCMR in 2015. cc. Item 21 of the record of proceedings in ABCMR Docket Number AR20160008917 states, “The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond.” dd. On 25 September 2018, through counsel, the applicant provided a rebuttal to ABCMR Docket Number AR20160008917 that states in pertinent part: (1) The advisory official (AO) recommends denial, erroneously asserting, "Once a Soldier achieves 20 years of active service they are no longer entitled to retire with a non-regular retirement." The AO also erroneously asserts, "The applicant's last six years were not in a Reserve status." Apart from those two statements, we can discern no other rationales for the AO's recommendation. (2) The AO's assertion that a Soldier who retires with 20 years of active service is no longer eligible to retire with a non-regular retirement stands in direct conflict with Title 10 USC section 12741, which directly authorizes Soldiers who have become entitled to regular retired pay (whether or not they actually receive such pay is irrelevant, see Department of Defense Financial Management Regulation (DODFMR) 7000.14-R, Volume 7B, chapter 7, paragraph 070102), and who then serve in an active status in a Reserve Component, to elect to receive non-regular retired pay from the date on which the Soldier reaches the age of 60 years. We cannot understand, then, on what legal basis the AO's assertion was made. Regardless, it clearly is erroneous and the ABCMR must disregard it. (3) The dispute that is the center of this application concerns the Army's erroneous interpretation (and application) of the "six-year rule" of Title 10 USC section 12731(a)(4)(f), and Department of Defense Instruction (DODI) 1215.07 (Service Credit for Non-Regular Retirement), paragraph 2, and other provisions of law. The AO asserts that the applicant’s last six years were not in a Reserve status. We understand that assertion to mean that his last consecutive six years were not in a Reserve status. Yet as we showed in our principal memorandum, the relevant legal authorities make entirely clear that the last six years need not be consecutive, nor do they have to be the final six years of service. Indeed, and as we discuss below, we do not believe that the "six-year rule" is pertinent to the applicant’s conversion request. (4) According to National Guard Regulation (NGR) 680-2 (Automated Retirement Points Accounting Management), chapter 3, paragraph 3-13, the applicant and similarly situated Soldiers may apply to the Secretary for a waiver of regular retired pay and for payment of non-regular retired pay upon reaching age 60. According to the regulation: These Soldiers are exempt from the minimum Reserve Component service requirements stated in paragraph 3-3. They also are exempt from the limitation in Title 10 USC section 12731(a)(4) (subparagraphs 3-3a and b) that they not be entitled to retired pay from an Armed Force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve. The minimum service requirements stated in paragraph 3-3 include the "Last 8 Rule" and the "Last 6 Rule." per paragraph 3-13, then, the applicant need not satisfy the requirements of either of those rules. Next, paragraph 3-13 notes that the applicant is exempted from "the limitation in Title 10 USC, section 12731(a)(4) (subparagraphs 3-3a and b) that they not be entitled to retired pay from an Armed Force." The retirement conversion statute, section 12741, does not impose a "6- year rule" on the applicant and similarly situated Soldiers. Nor does the DODFMR 7000.14-R. We do not see, then, any legal requirement that the applicant meet the "six-year rule." (5) The NGB acknowledges the applicant completed the requirements for a non- regular retirement as established by Title 10 USC section 12731. His "Current Annual Statement" states, "Notice of Eligibility: Yes." Because the applicant completed his service "after 5 October 1994, but before 25 April 2005," the 6-year rule of Title 10 USC, section 12731 would pertain, not the 8-year rule. As AR 135-180 (Qualifying Service for Retired Pay Non-Regular Service) makes clear, the "last 6 years" do not have to be continuous, and do not have to be the final six years of service. Nor is a member limited to 20 years of service: service beyond 20 years counts toward the 6-year rule computation. See Title 10 USC section 12731(a)(2) and AR 135-180 (both versions). (6) The applicant completed his 14th year of creditable service on 10 February 1989. That is when his "last 6 years" began for the purposes of Title 10 USC, section 12731 and the pertinent regulations. His "last 6 years" span service from 11 February 1989 to 31 October 1999. The applicant admittedly performed service as a member of the RA from 25 December 1994 to 1 March 1996. We excluded that service from the six-year computation. He returned to the Reserve Component (ARNG) service on 2 March 1996 and served in that capacity until 31 October 1999. (7) As reflected on his "current annual statement." The applicant has 9 full years of creditable service, plus an additional 6 months and 13 days. The applicant satisfied the 6-year rule on or about 10 February 1997. At that point, he completed eight years of service, of which 1 year, 2 months, and 6 days were credited as RA service. Excluding that RA service, he had more than six years of Reserve Component (ARNG) service on or about 10 February 1997. The applicant performed over two years of additional Reserve Component (ARNG) service after satisfying the six-year rule on 10 February 1997. (8) We wish to underscore the fact that with the exception of the one period of service (25 December 1994 to 1 March 1996) in the RA, the remainder of the applicant’s service after 10 February 1989 was as a member of a Reserve Component. 5. The applicant, through counsel, provides: a. ABCMR Docket Number AC95-07081 wherein the applicant petitioned the Board to expunge his record of the non-selection to the rank of CW4 and promotion to that rank. The Board denied his request. b. ABCMR Docket Number AR20140015803 wherein the applicant petitioned the Board to convert his regular retirement to a non-regular retirement. On 28 May 2015, the Board denied his request citing the member must have completed the last 6 years of qualifying service as a Reserve Component Soldier to be eligible for a non-regular retirement, noting he requested a voluntary active duty retirement, and Title 10 USC, section 12741 specified that the law was not retroactive with exceptions only for Soldiers in a drilling status. 6. On 11 May 2020, the NGB reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the Retirement Services Transition Branch opined that: a. The applicant completed 24 years, 8 months, and 20 days of military service. Per Title 10 USC, section 12731(a)(3), in the case of an individual who completed the service requirements of paragraph (2) before 25 April 2005 (such as the applicant) an individual applying for non-regular retirement must have performed the last six years of qualifying service while a member of any category named in section 12732(a)(1) of this title, but not while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve. b. Title 10 USC section 12741 provides that "notwithstanding the requirement in paragraph (a) of section 12731(a) of this title that a person may not receive retired pay under this chapter when the person is entitled, under any other provision of law, to retired pay or retainer pay, a person may elect to receive retired pay under this chapter." The chapter to which this prevision refers is chapter 1223, Retired Pay for Non-Regular Service. Thus, this statute permits a Service member, if eligible to do so, to elect to receive retired pay under a non-regular retirement instead of regular retirement. c. The advisory official noted some controversy with regard to whether the applicant satisfied the "last six years" rule discussed in subparagraph a, above. As indicated, the last 6 years of qualifying service must be in a Reserve Component. The applicant attained 20 years of qualifying service on 10 February 1995. His last 6 years of qualifying years is any service between 10 February 1989 and 10 February 1995. During that interval, the applicant was in a Reserve Component from 10 February 1989 through 24 December 1994. This accumulates to 5 years, 10 months, and 15 days. Between 10 February 1995 and 31 October 1999 (the end of the applicant's military service) he served another 3 years, 7 months, and 29 days in a Reserve Component. Adding these time periods together accumulates to a total of 9 years, 6 months, and 14 days towards the "last six years" rule. Therefore, it was the advisory official’s opinion that the applicant qualifies for a non-regular retirement. d. As for the requirement under Title 10 USC section 12741(a)(1)(C) that the Service member complete no less than two years of satisfactory service in an active status (excluding any period of active service), it appears this requirement was added to the statute in 2009 and is not applicable to the applicant. This interpretation is confirmed by Department of Defense Financial Management Regulation 7000.14-R, paragraph 070202.C., which excludes the two-year active status requirement for those eligible for regular retired pay on or before 27 October 2009. The applicant would therefore not have been required to satisfy this criterion and should have been eligible to convert his regular retirement to a non-regular retirement at age 60. 7. On 1 June 2020, the applicant responded through counsel concurring with the advisory opinion recommendation. Counsel also wanted to cite the conversion was also authorized by DODFMR 7000.14-R, Volume 7B, paragraph 010104, as noted in the applicant’s application and the Court of Federal Claims. 8. Title 10 USC section 12731(a)3 (Age and Service Requirements) states a person is entitled, upon application, to retired pay if the person has performed at least 20 years of service computed under section 12732 of this title before 25 April 2005 and performed the last six years of qualifying service while a member of the Selected Reserve, but not while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps, and is 60 years of age. 9. Title 10 USC section 12741(a)1 (Retirement for Service in an Active Status Performed in the Selected Reserve for the Ready Reserve after Eligibility for Regular Retirement) states, notwithstanding the requirement in paragraph 4 of section 12731(a) (entitled to retirement pay from an Armed Force under any other provision of law) that a person may not receive retired pay under this chapter when the person is entitled, under any other provision of law, to retired pay, a person may elect to receive retired pay under this chapter if the person satisfies the requirements specified in paragraphs (1) and (2) of such section for entitlement to retired pay under this chapter; (B) served in an active status in the Selected Reserve of the Ready Reserve after becoming eligible for retirement under chapter 65, 367, 571, or 867 of this title (without regard to whether the person actually retired or received retired or retainer pay under one of those chapters); and (C) completed not less than two years of satisfactory service (as determined by the Secretary concerned) in such active status (excluding any period of active service). 10. DODI 1215.07 (Service Credit for Non-Regular Retirement) section F (Procedures) paragraph 2 (Reserve Service Requirements to Qualify for Non-Regular Retirement) in effect at the time states, to qualify, on application, for non-regular retired pay, at or after age 60, a member must have, unless otherwise provided by law, completed 20 years of qualifying service. The last 8 years of such qualifying service must be in a Reserve component. There is no requirement that the last 8 years of qualifying Reserve Component service be continuous. Any period of service as a member of a Regular component intervening between periods of Reserve service counted toward the 8 year requirement must be excluded in determining whether the member has the requisite 20 years of qualifying service for eligibility for non-regular retired pay. 11. NGR 680-2 (dated 19 August 2011): a. Paragraph 3-2a (Basic Qualifying Service Requirement) states to qualify for non- regular retired pay at or after the age specified in paragraph 3-1 (60 years of age), a Soldier or former Soldier must have completed at least 20 years of qualifying service, as provided in Title 10 USC section 12731. b. Paragraph 3-3(b) states 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 the regular component. c. Paragraph 3-3(d) states the service required in paragraph 3-3(b) does not need to be continuous years of qualifying service. d. Paragraph 3-3(e) states 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 in paragraph 3-2 toward eligibility for non-regular retired pay, but will not count toward the last 8 or 6 years. e. Paragraph 3-13 (Retirement from Active Reserve Service Performed after Regular Retirement) states Soldiers who, after becoming entitled to regular retired or retainer pay, serve in an active status in the ARNG/ARNGUS, may apply to the Secretary of the Army for a waiver of their regular retired pay and for payment of retired pay for non-regular service on or after attaining the age specified in paragraph 3-1. These Soldiers are exempt from the minimum Reserve Component service requirements stated in paragraph 3-3. They also are exempt from the limitation in Title 10 USC section 12731(a)(4) (subparagraphs 3-3a and b) that they not be entitled to retired pay from an Armed Force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve. 12. DODFMR Volume 7B (Military Pay Policy and Procedures – Retired Pay) section 070202 (Active Reserve (Non-Regular) Service after Regular Retirement or Eligibility for Regular Retirement) states a member who served in an active status in the Selected Reserve of the Ready Reserve after becoming eligible for regular retired or retainer pay based on years of service, without regard to whether the member actually retired or received retired or retainer pay for regular service, may apply for Reserve (non-regular) retired pay if the member: (1) Has attained the Reserve (non-regular) pay eligibility age of 60 years or such other reduced eligibility age as provided for in Title 10 USC, section 12731; (2) Has performed at least 20 years of service for a Reserve (non-regular) retirement. 13. AR 600-8-24, paragraph 6-14(2), in effect at the time, states any warrant officer with 20 years of active federal service may upon his or her request and the approval of the Secretary of the Army be retired. For a Reserve warrant officer to retire under this provision, he must have a USAR status at the time of retirement. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is warranted. 2. The Board concurred with the advisory opinion provided by NGB and agreed that, in this case, the service record confirms the applicant met the criteria outlined in the applicable statutes and regulatory guidance and is, in fact, eligible to request non- regular retired pay in lieu of the regular retired pay he currently receives. The Board determined a preponderance of the evidence supports a recommendation to correct the record to show the applicant's request to receive non-regular retired pay in lieu of regular retired pay was approved effective the date he reached age 60. The Board further determined the applicant should receive any non-regular retired pay in arrears he is due as a result of this correction. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XX :XXX 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 his request to receive non-regular retired pay in lieu of regular retired pay was approved effective the date he reached age 60. The Board further determined the applicant should receive any non-regular retired pay in arrears he is due as a result of this correction. 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 12731(a)3 (Age and Service Requirements) states a person is entitled, upon application, to retired pay if the person has performed at least 20 years of service computed under section 12732 of this title before 25 April 2005, performed the last six years of qualifying service while a member of the ARNG, but not while a member of a regular component. 2. Title 10 USC, section 12741(a)1 (Retirement for Service in an Active Status Performed in the Selected Reserve for the Ready Reserve after Eligibility for Regular Retirement) states, notwithstanding the requirement in paragraph 4 of section 12731 (a) (entitled to retirement pay from an Armed Force under any other provision of law) that a person may not receive retired pay under this chapter when the person, is entitled, under any other provision of law, to retired pay, a person may elect to receive retired pay under this chapter if the person satisfies the requirements specified in paragraphs (1) and (2) of such section for entitlement to retired pay under this chapter; (B) served in an active status in the Selected Reserve of the Ready Reserve after becoming eligible for retirement under chapter 65, 367, 571, or 867 of this title (without regard to whether the person actually retired or received retired or retainer pay under one of those chapters); and (C) completed not less than two years of satisfactory service (as determined by the Secretary concerned) in such active status (excluding any period of active service). 3. DODI 1215.07 (Service Credit for Non-Regular Retirement) section F (Procedures) paragraph 2 (Reserve Service Requirements to Qualify for Non-Regular Retirement) in effect at the time states to qualify, on application, for Non-Regular retired pay, at or after age 60, a member must have, unless otherwise provided by law, completed 20 years of qualifying service. The last 8 years of such qualifying service must be in a Reserve component. There is no requirement that the last 8 years of qualifying Reserve Component service be continuous. Any period of service as a member of a Regular component intervening between periods of Reserve service counted toward the 8 year requirement must be excluded in determining whether the member has the requisite 20 years of qualifying service for eligibility for Non-Regular retired pay. 4. NGR 680-2 (Automated Retirement Points Accounting Management) (dated 19 August 2011): a. Paragraph 3-2a (Basic Qualifying Service Requirement) states to qualify for Non- Regular retired pay at or after the age specified in paragraph 3-1 (60 years of age), a Soldier or former Soldier must have completed at least 20 years of qualifying service, as provided in Title 10 USC, section 12731. b. Paragraph 3-3(b) states for Soldiers who completed the years of qualifying service on or after 5 October 1994, but before 26 April 2005, the last 6 years of qualifying service must have been in a component other than the regular component. c. Paragraph 3-3(d) states the service required in paragraph 3-3(b) does not need to be continuous years of qualifying service. d. Paragraph 3-3(e) states 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 in paragraph 3-2 toward eligibility for non-regular retired pay, but will not count toward the last 8 or 6 years. e. Paragraph 3-13 (Retirement from Active Reserve Service Performed after Regular Retirement) states Soldiers who, after becoming entitled to regular retired or retainer pay, serve in an active status in the ARNG/ARNGUS, may apply to the Secretary of the Army for a waiver of their regular retired pay and for payment of retired pay for Non-Regular service on or after attaining the age specified in paragraph 3-1. These Soldiers are exempt from the minimum Reserve Component service requirements stated in paragraph 3-3. They also are exempt from the limitation in Title 10 USC, section 12731(a)(4) (subparagraphs 3-3a and b) that they not be entitled to retired pay from an Armed Force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve. 5. DODFMR Volume 7B (Military Pay Policy and Procedures – Retired Pay) section 070202 (Active Reserve (Non-Regular) Service after Regular Retirement or Eligibility for Regular Retirement) states a member who served in an active status in the Selected Reserve of the Ready Reserve after becoming eligible for regular retired or retainer pay based on years of service, without regard to whether the member actually retired or received retired or retainer pay for regular service, may apply for Reserve (Non- Regular) retired pay if the member: (1) Has attained the Reserve (Non-Regular) pay eligibility age of 60 years or such other reduced eligibility age as provided for in Title 10 USC, section 12731; (2) Has performed at least 20 years of service for a Reserve (Non- Regular) retirement. 6. AR 600-8-24 (Officer Transfers and Discharges) paragraph 6-14(2) in effect at the time, states any warrant officer with 20 years of active federal service may upon his or her request and the approval of the Secretary of the Army be retired. For a Reserve warrant officer to retire under this provision, he must have a USAR status at the time of retirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190014785 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1