ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 May 2021 DOCKET NUMBER: AR20200008964 APPLICANT REQUESTS: in effect, correction of: * his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 March 2011, to show he has 20 years, 5 months, and 25 days for an active duty retirement * all back pay and entitlements as a result of his retirement, and to receive back pay as a prior enlisted member for O-1E to O-3E pay APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) ending on 8 August 1996 * NGB Form 23A (Army National Guard (ARNG) Current Annual Statement), prepared on 14 May 1998 * DD Form 214, ending on 1 March 2011 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (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, in effect: a. His total service time was not recorded at the time of his discharge/writing of his DD Form 214. He recently acquired a copy of his NGB Form 22 and his service time calculation, which adds 3 years, 7 months, and 9 days to his enlisted service time. He was denied an active retirement due to these missing records. b. He is requesting a corrected DD Form 214 showing his corrected time, and an active retirement based on his new total of 20 years, 5 Months, and 25 days. 3. The applicant's service record shows the following information: a. DD Form 214 for the period ending 8 December 1992 reflects in: * Item 2 (Department, Component and Branch): "Army/Regular Army" * Item 4a (Grade, Rate or Rank): Specialist * Item 4b (Pay Grade): E-4 * Item 12a (Dated Entered AD This Period): "28 August 1990" * Item 12b (Separation Date This Period): "8 December 1992" * Item 23 (Type of Separation): Relief from Active Duty * Item 24 (Character of Service): Honorable b. DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), which reflects the applicant enlisted in the ARNG on 9 December 1992. c. On 22 May 1996, Orders Number 150-7-A-XXX, issued by U.S. Army Cadet Command, Fort Knox, KY, ordered the applicant to active duty for a period of 3 years. d. On 1 March 2011, the applicant was honorably discharged from active duty by reason of non-selection, permanent promotion. DD Form 214 shows he completed 14 years, 6 months, and 14 days of net active service, with 2 years, 4 months, and 11 days of prior active service, and 3 years, 7 months, and 9 days of prior inactive service. Item 4b (Pay Grade) shows O-3. e. The applicant's records are void of orders placing him on active duty during his enlisted time in the ARNG. 4. The applicant provides the following documents: a. NGB Form 22 for the period 9 December 1992 to 8 August 1996, which shows: * Item 5a (Rank): E4 * Item 10a (Net Service This Period): "3 years and 11 months" * Item 10c (Prior Active Federal Service): "2 years, 3 months, and 11 days" * Item 10d (Total Service for Pay): "6 years, 2 months, and 11 days" * Item 10e (Total Service for Retired Pay): "6 years, 2 months, and 11" * Item 24 (Character of Service): Honorable b. NGB Form 23A, prepared on 14 May 1998, shows his grand total as: * Active Duty Points: 864 * Total Career Points: 1070 * Total Points for Retired Pay: 1070 * Creditable Service for Retired Pay: 5 years, 11 months, and 11 days 5. On 15 April 2021, the U.S. Army Human Resources Command, Fort Knox, KY, provided an advisory opinion which states, in pertinent part, "Applicant's DD Form 214 ending on 8 December 1992, is for 2 years, 3 months, 11 days, he shows 30 active duty days while in the ARNG and his DD Form 214 ending on 1 March 2011 (assuming his start date is correct) is for 14 years, 6 months, 14 days. All active duty combined comes to 16 years, 10 months and 25 days." 6. The applicant was provided a copy of the advisory opinion with an opportunity to respond. To date, he has not responded. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records, and Army Human Resources Command (AHRC) advisory the Board concurred with the ARHC findings that his records accurately reflected his military service time. Evidence in the record showed the applicant entered service under the Delayed Entry Program for a period of 19 Jun 1990 to 27 August 1990. He was regular army from 28 August to 8 December 1992. The applicant’s National Guard Bureau (NGB) Form 22 reflects 9 December 1992 to 8 August 1996 with him returning to AD from 13 July 1996 to 1 March 2011. The Board determined the burden of proof rest with the applicant to provide a supporting documentation and his service record has insufficient evidence to support the applicant’s claim. Based on this the Board determined relief was not warranted and denied relief. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X RS 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. 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 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 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. 3. Title 10, USC 12732 (Entitlement to Retired Pay: Computation of Years of Service) states for each one-year period, after 1 July 1949, in which the person has been credited with at least 50 points on the following basis: a. One point for each day of: (1) Active service; or (2) Full-time service under Title 32, USC, sections 316, 502, 503, 504, and 505 while performing annual training duty or while attending a prescribed course of instruction at a school designated as a service school by law or by the Secretary concerned; if that service conformed to required standards and qualifications. b. One point for each attendance at a drill or period of equivalent instruction that was prescribed for that year by the Secretary concerned and conformed to the requirements prescribed by law, including attendance under Section 502 of Title 32. c. Points at the rate of 15 a year for membership: (1) in a Reserve component of an armed force, (2) in the Army or the Air Force without component, or (3) in any other category covered by Subsection (a)(1) except a regular component. 4. Army Regulation 135-180 (Retirement for Non-Regular Service) implements statutory authorities governing the granting of retired pay to Soldiers and former Reserve Component Soldiers. It states: a. Chapter 2 provides eligibility criteria and states, in pertinent part, that in order to qualify for non-regular retirement, a member must have attained age 60 and completed a minimum of 20 years of qualifying service. Paragraph 2-8 defines qualifying service and states, in pertinent part, that a Reserve Component Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. b. Retired pay is granted after completion of 20 or more years of qualifying service and upon attaining age 60. 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, completed a minimum of 20 years of qualifying service, and served the last 8 years of qualifying service as a Reserve Component Soldier. c. Each Reserve Component Soldier who completes 20 qualifying years of service to be eligible for retired pay at age 60 will be notified in writing within 1 year after he or she has completed that service (20-Year Letter). The notification will be issued to those individuals credited with 20 years of qualifying service prior to discharge or transfer to the Retired Reserve. In those instances, where qualified Soldiers have been discharged or transferred to the Retired Reserve prior to issuance of the letter of notification, Army Reserve Personnel Center will issue the letter. 5. 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) 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). 6. Department of Defense (DOD) Instruction 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. 7. National Guard Regulation 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. 8. Army Regulation 37-104-4 (Military Pay and Allowances), states in chapter 2, paragraph 3 (Active enlisted and warrant officer service — pay grades O1E, O2E, or O3E). Commissioned officers in the pay grades O1, O2, or O3 are entitled to the special rate of pay if the officer has over 4 years of active enlisted and warrant officer service or a combined total of active enlisted and warrant officer service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200008964 4 1