IN THE CASE OF: BOARD DATE: 3 May 2022 DOCKET NUMBER: AR20210016885 APPLICANT REQUESTS: in effect, correction of her record to show she completed 20 years of service qualifying her for retirement and non-regular retired pay. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Attorney Brief * Exhibit 1 - DD Form 214 (Certificate of Release or Discharge from Active Duty) * Exhibit 2 - Release from Active Duty (REFRAD) Orders, dated 23 September 2003 * Exhibit 3 - DD Form 214WS (DD Form 214 Worksheet) * Exhibit 4 - Reassignment Order, dated 3 November 2006 * Exhibit 5 - Officer Evaluation Report (OER), period covering 20 August 1998 – 31 July 1999 * Exhibit 6 - OER, period covering 18 April - 20 October 2003 * Exhibit 7 - OER, period covering 3 November 2006 - 2 November 2007 * Exhibit 8 - OER, period covering 8 August 2017 - 26 August 2018 * Exhibit 9 - Discharge Orders, dated 26 June 2018 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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’s attorney states the applicant enlisted in the United States Army Reserve (USAR) in May 1990. She specialized as a chemical general for 2 years and 4 months. She served faithfully and honorably in her duties until she was erroneously discharged from the Army Reserves on 19 October 2003 for "not by reason of physical disability," (see exhibit 2) with the narrative reason "Completion of Required Active Service, “separation code "LBK," and no reentry code, (see exhibit 3). a. Two years and 6 months’ [3 years and 15 days] following the discharge it was overturned, and she was reassigned to the Reserve component (see exhibit 4). b. The applicant's performance evaluations spoke of her proficiency in her field. She was praised for her leadership, work ethic, organization, and adaptability, (see exhibits 5-8). She was promoted multiple times, from first lieutenant to lieutenant colonel (LTC). The applicant served until her discharge on 26 July 2018, (see exhibit 9). c. Overall, the applicant served from 1990 to 2003, was discharged for 2 years and 6 months [3 years and 15 days], then served again until 2018. Her service totaled roughly 25 years and 6 months. Though honorably discharged, she does not qualify for retirement pay. The applicant respectfully requests credit for the years lost and retirement pay to reflect 20 years of service. d. The applicant suffered a material error as a result of her erroneous discharge from the Army. The error is evident in her reassignment 2 years and 6 months’ months [3 years and 15 days] later. If the discharge was proper, there would be no need to overturn the applicant's discharge. There is no evidence of any wrongdoing on the applicant's part to justify the discharge. 3. On 11 May 1990, the applicant executed an oath of office and was appointed as a Reserve commissioned officer in the grade of second lieutenant. a. Orders, dated 20 March 1992, ordered her to active duty to attend chemical school with a reporting date of no later than 12 April 1992. b. On 23 May 2014, the applicant was promoted to the rank of LTC. c. A DA Form 5016 (Chronological Statement of Retirement Points), dated 26 January 2022, shows she has 1,831 total points creditable and 17 years, 8 months, and 5 days qualifying service for non-regular retired pay purposes. 4. In support of her application, the applicant provides: a. Exhibit 1 - DD Form 214, shows the applicant entered active duty to complete the chemical officer basic course from 11 April - 28 August 1992, and was honorably REFRAD training under the provision of orders, dated 20 August 1992, on 28 August 1992. b. Exhibit 2 - REFRAD Orders, dated 23 September 2003, shows she was REFRAD not by reason of physical disability on 19 October 2003, and assigned to the 433rd Chemical Detachment Commander Element, Air Force Base, GA. c. Exhibit 3 - DD Form 214WS, shows the applicant was honorably REFRAD on 20 October 2003 for completing required active service and transferred to 433rd Chemical Detachment Element Army Reserve. This DD Form 214 shows she was ordered to active duty in support of Operation Enduring Freedom and served in Iraq and Kuwait from 14 April -23 June 2003. She also completed the chemical officer advanced course in August 2003 and was awarded or authorized: * National Defense Service Medal * Armed Forces Reserve Medal with “M” device * Army Service Ribbon * Army Lapel Button d. Exhibit 4 - Reassignment Order, dated 3 November 2006, shows the applicant was released from the USAR Control Group (Reinforcement) and reassigned in the Reserve to 108th Transportation Regiment, 4th Brigade, Decatur, GA on 3 November 2006. e. Exhibit 5 - OER, period covering 20 August 1998 – 31 July 1999, shows she received an “Outstanding Performance, Must Promote” rating from her rater, and “Best Qualified” rating from her senior rater. f. Exhibit 6 - OER, period covering 18 April - 20 October 2003, shows she received an “Outstanding Performance, Must Promote” rating from her rater, and “Best Qualified” rating from her senior rater. g. Exhibit 7 - OER, period covering 3 November 2006 - 2 November 2007, shows she received an “Outstanding Performance, Must Promote” rating from her rater, and “Best Qualified” rating from her senior rater. h. Exhibit 8 - OER, period covering 8 August 2017 - 26 August 2018, shows she received a “Capable” rating from her rater, and “Qualified” rating from her senior rater. i. Exhibit 9 - Discharge Orders, dated 26 June 2018, shows she was honorably discharged on 26 July 2018 under the provisions of Army Regulation (AR) 135-175 (Separation of Officers). It states her removal was required by Title 10, USC, section 14507 and AR 140-10, paragraph 2, maximum years of service. She did not attain sufficient years to qualify for retired pay or for retention under Title 10, USC, section 12646. At the time of her discharge, she was under the age of 50. 5. On 22 February 2022, an advisory opinion was obtained from the USARC, Deputy G-1, it states: a. The applicant reached 28 years of service (11 May 1990 appointment and 26 July 2018 separation) as a commissioned officer in 2018, however, only 17 of those years qualify towards retirement. She was not recommended for continuation by a selective continuation board and was removed from service for completion of maximum authorized years of service. In addition, she earned membership points during non- qualifying years, however, the additional years did not earn enough points to qualify for a good year. b. The applicant transferred from the Army Reserve to the Individual Ready Reserve (IRR) (Reinforcements) numerous times throughout her career. While assigned to the IRR, she earned 15 membership points each year and that counted towards her commissioned service time, however, she did not earn enough points to earn a good year [qualifying retirement year] while assigned to the IRR. c. Her separation is in compliance with regulatory guidance and reflect the correct historical nature of the actions required by law and regulation. The USARC G-1 does not recommend relief to credit the applicant with twenty qualifying years of service for non-regular retirement. 6. On 24 February 2022, the applicant was provided a copy of the advisory opinion, however, she did not submit a response. 7. AR 135-175, states, members of the USAR will be removed from an active status for any reason in subparagraphs 4-3a (1) through 4-3a (17) (i.e. Length of service), with or without the officer’s consent, regardless of the length of commissioned service (see AR 140–10 (Army Reserve - Assignments, Attachments, Details, and Transfers)). Removal will be by discharge characterized as honorable, transfer to the Retired Reserve (if eligible and the member applies) or, if eligible, transfer to the Standby Reserve (Inactive Status List). 8. AR 135-180 (Retirement for Non-Regular Service), states, to be eligible for retired pay at or after age 60, but not below age 50, an individual need not have military status at the time of application, but must have completed one of the following: a. A minimum of 20 years of qualifying service computed under Title 10, USC, section 12732; or b. Fifteen 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, and none of the conditions in Title 10, USC, section 12731b (b) exist. 9. AR 140-10, states, Soldiers from an active status and states, in pertinent part, Soldiers removed from an active status will be discharged or, if eligible and if the Soldier requests, will be transferred to the Retired Reserve. a. Soldiers being removed from an active status for maximum years of service or maximum age will be reassigned to the Retired Reserve, if eligible, unless discharge is requested. b. Soldiers in the grade of LTC will be removed on the first day of the month after the month in which the officer completes 28 years of commissioned service. LTCs selected for, and who voluntarily accept, continuation on the Reserve active status list under the provisions of Title 10, USC, section 14701 will be retained for the continuation period, but not beyond the last day of the month in which the officer completes 33 years of commissioned service. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. By law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for non-regular retired pay. A qualifying year of service for nonregular retired pay is a full year during which a Regular or Reserve member is credited with a minimum of 50 retirement points. The evidence shows the applicant completed 17 years of qualifying service towards non-regular retirement. Board members determined she does not meet the statutory requirements for a 20-year retirement. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XXX: XX: 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. AR 135-175 (Separation of Officers), in effect at the time, prescribed the policies, criteria, and procedures governing the separation of Reserve officers of the Army. Paragraph 4-3a, members of the USAR will be removed from an active status for any of the below reasons with or without the officer’s consent, regardless of the length of commissioned service (see AR 140–10 (Army Reserve - Assignments, Attachments, Details, and Transfers)). Removal will be by discharge characterized as honorable, transfer to the Retired Reserve (if eligible and the member applies) or, if eligible, transfer to the Standby Reserve (Inactive Status List). * Medical unfitness * Maximum age * Length of service * Failure to qualify for promotion from warrant officer one to warrant officer two * Non-selection for promotion after second consideration * Failure to earn sufficient retirement points for retention * General officers ceasing to occupy commensurate positions * Selection for removal from an active status * Exemption from mobilization. * Withdrawal of Federal recognition * Non-availability of Standby Reserve officer * Failure to complete a basic branch course * Failure to complete military educational requirements * Non-acceptance of assignment by non-obligated officer * Request not to be transferred to the Retired Reserve on removal from active status * Failure or refusal to provide mailing address * Failure of Judge Advocate General’s Corps officers to become educationally qualified within specified time limits 3. AR 135-180 (Retirement for Non-Regular Service), in effect at the time, implements the statutory authority governing what constitutes qualifying service for retired pay for non-regular service to Soldiers in the Army National Guard, Army National Guard of the United States or the USAR. a. Paragraph 2-2 (Basic qualifying service requirements) states, to be eligible for retired pay at or after the age specified in paragraph 2-1 (age 60, but not below age 50), an individual need not have military status at the time of application, but must have completed one of the following: (1) A minimum of 20 years of qualifying service computed under Title 10, USC, section 12732; or (2) Fifteen 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, and none of the conditions in Title 10, USC, section 12731b (b) exist. b. A Reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. Only Soldiers assigned to an active status in a Reserve component or individuals in active Federal service are authorized to earn retirement point credits. 4. AR 140-10 (Army Reserve - Assignments, Attachments, Details, and Transfers), in effect at the time, prescribed policies, responsibilities, and procedures to assign, attach, detail, remove, and transfer of USAR Soldiers. a. Chapter 7 of this regulation prescribed the removal of Soldiers from an active status and states, in pertinent part, Soldiers removed from an active status will be discharged or, if eligible and if the Soldier requests, will be transferred to the Retired Reserve. Soldiers being removed from an active status for maximum years of service or maximum age will be reassigned to the Retired Reserve, if eligible, unless discharge is requested. b. Paragraph 7-2h, Soldiers in the grade of LTC will be removed on the first day of the month after the month in which the officer completes 28 years of commissioned service. LTCs selected for, and who voluntarily accept, continuation on the Reserve active status list under the provisions of Title 10, USC, section 14701 will be retained for the continuation period, but not beyond the last day of the month in which the officer completes 33 years of commissioned service. 5. Title 10, USC, chapter 1223 (Retired Pay for Non-Regular Service), section 12731 (Age and Service Requirements), provides that a person is entitled upon application to retired pay if the person is age 60 and has performed at least 20 years of qualifying service. A qualifying year is determined to be a year in which a minimum of 50 retirement points have been credited for a Reserve member. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210016885 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1