ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 September 2020 DOCKET NUMBER: AR20200000104 APPLICANT REQUESTS: in effect, the issuance of a 15-Year Notification of Eligibility (NOE) for Retired Pay at Age 60 (15 Year Letter) and placement on the Retired List. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Direct Deposit Set-Up Form FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the 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: a. He requests approval of a 15-year retirement. He was not given proper credit for the 15-year retirement program. His supporting documents are on file at the U.S. Army Human Resources Command (AHRC) at Fort Knox, KY. b. He served in the Regular Army from 1980 to 1983 and in the U.S. Army Reserve (USAR) until 2004, when he retired. He is requesting a review of his retirement points so he may be compensated for his time. He realizes he served 15 years when he needed 16 years. His reason for that is both of his parents were ill and he returned home to care for them. c. He feels he served his country to the best of his ability and he has used his military training throughout his life as a civilian. He is submitting a copy of his DD Form 214, his DD Form 149, and a copy of a voided check with his Direct Deposit Form. He is retired and feels he should be entitled to military compensation for his years of service. 3. The applicant’s DD form 214 shows he enlisted in the Regular Army on 21 August 1980 and was honorably released form active duty on 20 August 1983 at his expiration term of service, after 3 years net active service. 4. The applicant’s DA Form 5016 (Chronological Statement of Retirement Points) shows he enlisted in the USAR on 30 July 1983. 5. Headquarters, 77th Regional Support Command Orders 02-280-00007, dated 7 October 2002, show he was discharged from the USAR under honorable conditions effective 7 October 2002. 6. His DA Form 5016 shows he was credited with 15 years and 1 day of qualifying service for retirement. 7. The applicant provided a copy of a voided check as part of an undated and unsigned Direct Deposit Set-Up Form from Chase Bank. 8. The applicant’s records are void of documentation showing he qualified for, requested, and was approved for early retirement eligibility at 15 years of service under the Temporary Early Retirement Authority (TERA) based on physical disability or any other criteria. 9. The applicant’s records do not contain a 15 Year NOE for Retired Pay at Age 60 or a 20 Year NOE for Retired Pay at Age 60. 10. In the adjudication of this case, the Chief, Gray Area Retirements Branch, AHRC provided an advisory opinion on 30 July 2020 which states: a. The Gray Area Retirements Branch has reviewed the applicant’s military records and determined he has a total of 15 years and 1 days of qualifying service. 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. b. The applicant attained 15 years of qualifying service in 2002 and was discharged under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) due to misconduct with a general, under honorable conditions characterization of service on 7 October 2002. Therefore, he is not eligible for a 15-year letter. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief is not warranted. The Board concurred with the AHRC advisory official's finding that the applicant is not eligible to be issued a 15-year letter due to his involuntary discharge for misconduct. 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. 11/9/2020 X CHAIRPERSON 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Public Law 102-484, section 4403 of the Fiscal Year 1993 National Defense Authorization Act, dated 23 October 1992, was the first authorization to allow the U.S. Army to create an early retirement program, the Temporary Early Retirement Authorization (TERA) for Active Component and Active Guard and Reserve Soldiers who had completed 15 years of Active Federal Service (AFS), but less than 20 years of AFS at their separation date and who requested retirement in lieu of separation. The TERA was enacted by Congress to assist in the military drawdown of forces and to permit selected military members to retire early between 15 and 20 years of service and for Regular Army Soldiers to accrue additional military retirement points through service in Reserve Components (RC) or employment in qualifying public or community service organizations. The Secretaries of the respective services designated the ranks and military specialties that were eligible to apply according to the needs of the specific service. Retirement under this program was not a right; it was granted on an individual basis according to the requirements of the service. 3. Title 10 USC, section 12731 (Age and service requirements) provides the legal age and service requirements for age and service for Reserve non-regular retirement. It states that, upon application, a person is entitled to retired pay if the person has attained the applicable eligibility age, has performed at least 20 years of service computed under section 12732 of this Title; and is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve. 4. Title 10 USC, section 12731a (Temporary special retirement qualification authority) provides for retirement with at least 15 years of service. The Secretary concerned may, during the period described in the subsection below, determine to treat a member of the Selected Reserve of a RC of the armed force under the jurisdiction of that Secretary as having met the service requirements of 10 USC 12731, subsection (a)(2), and provide the member with the notification required by subsection (d) of that section if the member: a. as of 1 October 1991, has completed at least 15, and less than 20, years of service computed under section 12732 of this title; or b. after that date and before the end of the period described in subsection (b), completes 15 years of service computed under that section; and c. upon the request of the member submitted to the Secretary, transfer the member to the Retired Reserve. d. The period referred to above is the period beginning 23 October 1992 and ending 31 December 2001. 5. Title 10 USC, section 12731b (Special rule for members with physical disabilities not incurred in the line of duty), enacted 23 October 1992, provides in pertinent part that in the case of a member of the Selected Reserve of a RC who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes as of 1 October 1991. This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC. //NOTHING FOLLOWS//