IN THE CASE OF: BOARD DATE: 5 October 2022 DOCKET NUMBER: AR20220004338 APPLICANT REQUESTS: correction of his retirement points for Retirement Year Ending (RYE): * 5 June 1973 – by adding 3 points resulting in a total of 50 points * 5 June 1988 – by adding 1 point resulting in a total of 50 points * A personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter * AHRC Form 249-E (Chronological Statement of Retirement Points), dated 29 September 2015 * DA Form 3593 (Annual or Terminal Statement of Retirement Points) * DA Form 5016 (Chronological Statement of Retirement Points), dated 20 September 2016 * DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge) * Excerpt Army Reserve Retirement Points Information Guide * N_P_, Attorney at Law letter, dated 19 December 2021 * Photograph * Email communication * Self-authored letter, dated 28 November 2016 * U.S. Army Human Resources Command (HRC) letter, dated 8 December 2016 * Email communication * Memorandum – Subject: Reserve Status, dated 21 January 1971 * Email communication 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 (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 pertinent part that an analyst previously incorrectly interpreted the Army Reserve Retirement Points Information Guide Chapter 1, Article 1- 5a which provides that "A break in service occurs only when a Soldier transfers to an inactive status list or is discharged to civilian life for longer than 24 hours." He notes that the analyst advised him that his DD Form 214 reflects commissioned service from 14 May 1968 – 2 May 1970. and continued his military service on the following day. He argues that he was discharged from longer than 24 hours. a. In a self-authored letter to this Board, he provides that he was eligible for retirement 15 years ago. He enlisted in the Army while serving in college under the College Option Program to avoid being drafted prior to graduating and served on active duty from 1967-1970. He spent 1 year in training followed by 3 years of service as an Infantry Officer. Following his release from active duty, he joined a U.S. Army Reserve (USAR) Troop Program Unit (TPU), approximately 15 months later. He remained in the USAR for approximately 17 years while pursuing his graduate degree. Unfortunately, during this time, he relocated 4 times and lost 5 years' worth of documentation pertaining to his retirement points. He has previously sought the assistance of the National Personnel Records Center (NPRC) but was advised that they were unable to provide documentation of his retirement points due to the fire. b. In 2015, the applicant received documentation of his retirement points and provided this information to an analyst at HRC. The analyst changed his RYE date from 13 May to 5 June. He argues that he now understands why he was initially enlisted in the Regular Army and discharged on 13 May 1968 at 0700 hours and commissioned in the USAR at 1200 hours on 14 May 1968, approximately 30 hours later. This is why his RYE date always reflected 13 May rather than 5 June. Previously he was unable to provide proof of the analyst's error because the regulations governing the College Option Program in the 1960s had been superseded by future guidance. c. Recently he made contact with a fellow former Officer that he served with (Mr. N_P_). Mr. N_P_ is now an attorney but previously served with him during his enlisted service, through graduation, and was later commissioned with him. His provided letter is offered as evidence that the applicant's RYE should be 13 May 1968 d. He contests that he suffered several injustices during his 20 years of military service to include being reduced from Captain (CPT) to First Lieutenant (1LT) after completing 14 years of service. He was unaware that healthcare officers were initially commissioned with a date of rank based on the date that they received their degree. As an infantry officer, things were different. He has been a 1LT and CPT twice but retired as a Major (MAJ). He lost income and rank because he improved his skill set by obtaining 2 advanced degrees after he was released from active duty. Here today, to have an HRC analyst refuse to listen to his concerns and make a personal decision, not supported by regulatory guidance, causing the loss of 4 retirement points is unacceptable. This action precludes him from having the 20 qualifying years of service required to be entitled to a non-regular retirement. 3. A review of the applicant's available service records reflects the following: a. On 6 June 1967, the applicant enlisted in the Regular Army to serve as an 11B (Light Weapons Infantryman). b. The applicant attended the Infantry Officer Candidate School from November 1967 – May 1968. c. On 13 May 1968, the applicant was honorably discharged from the Army under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel) in order to accept a commission. d. On 14 May 1968, the applicant was appointed a reserve commission at Fort Benning, GA in the rank/grade of second lieutenant (2LT)/o-1 and immediately ordered to active duty as an Infantry Corps Officer. e. On 14 May 1969, the applicant was promoted to 1LT. f. On 2 May 1970, the applicant was released from active duty and transferred into the USAR Control Group (Annual Training). g. On or about 13 May 1973, DA Form 3593 was produced reflective of the applicant obtaining a total of 53 retirement points during RYE on 13 May 1973 which covered the period of 14 May 1972 – 13 May 1973. h. On 13 May 1974, the applicant was promoted to CPT. i. On 26 May 1981, the applicant was appointed a commission in the Dental Corps in the rank of 1LT. j. On 2 March 1983, the applicant was promoted to CPT. k. On 30 September 1987, a DARP Form 249 (Chronological Statement of Retirement Points) was issued reflective of the applicant's cumulative points awarded between 14 May 1972 and 13 May 1987. For RYE on 13 May 1973, the applicant received a total of 53 retirement points. Paragraph 5 of this document provides that the Retirement Year, once established will not change as long as the member has continuous active status in a Regular Army (RA) and or Reserve Component (RC). A new retirement year will be established when there is a break in active service (i.e. discharge, transfer to the inactive Reserve or inactive Army National Guard or assigned to the Retired Reserve) and the individual returns to an active status. In such cases, the new retirement year begins on the date of return to an active status. If served in more than one component during the retirement year, without a break in active status, the last component served in for that retirement year will be shown. l. On 27 November 1988, the applicant was promoted to MAJ. m. On 21 March 1989, Headquarters, 81st U.S. Army Reserve Command issued Orders Number 022-007 voluntarily transferring the applicant from his assigned unit to the USAR Control Group (Annual Training) under the provisions of Army Regulation 140-10 (Assignments, Attachments, Details and Transfers). n. On 31 January 1996, the U.S. Army Reserve Personnel Center issued Orders Number D-01-616437 honorably discharging the applicant from the USAR Control Group (Reinforcement) under the provisions of Army Regulation 135-175 (Separation of Officers). 4. The applicant provides the following a: a. AHRC Form 249-E dated 29 September 2015, reflective of the applicant's retirement points history from 14 May 1972 – 13 May 1996. For RYE on 13 May 1973, the applicant accumulated 53 retirement points. For RYE on 13 May 1988, the applicant accumulated 50 retirement points. b. DA Form 3593 reflective of the applicant's points received from 6 June 1977 – 5 June 1980. For RYE on 5 June 1978, the applicant accumulated 76 retirement points. For RYE on 5 June 1980, the applicant accumulated 54 retirement points. c. DA Form 1383, 13 May 1980 covering the period of 14 May 1979 – 13 May 1980, the applicant accumulated a total of 64 retirement points. He notes that this is the result of his initial RYE date being reestablished. d. DA Form 5016 dated 20 September 2016, reflective of the applicant's retirement points accumulated between 6 June 1967 – 31 January 1996. The applicant notes his receipt of service credit for a partial year of service between his completion of enlisted service (13 May 1968) and initiation of his commissioned service on 14 May 1968. He also notes the change in his RYE date resulting in the loss of 3 points for RYE on 5 June 1973 and the loss 1 point for RYE on 5 June 1988. e. Excerpt Army Reserve Retirement Points Information Guide reflective of information pertaining to the crediting and awarding of retirement points and establishment of the Anniversary Year End (AYE). The applicant notes the guidance in paragraph 1-5a wherein it provides that "a break in service occurs only when a Soldier transfers to an inactive status list or is discharged to civilian life for longer than 24 hours. There will be no break in service if the Soldier transfers directly to another Regular or Reserve Component. When a Soldier has a break in service, returns to an active Reserve status or to active service, the revised AYE start date shall be the date of return or reentry." f. N_ P_, Attorney at Law letter dated 19 December 2021, reflective of communication between he and the applicant. Mr. N_P_ provides that both he and the applicant shared similar service time from being enlisted Soldiers through their date of commissioning. He notes that what happened to the applicant also happened to him. They served a total of 11 months 7 days as enlisted Soldiers prior to being honorably discharged on 13 May 1968 and commissioned the following day (14 May 1968). He recalls being issued a DD Form 214 on 13 May 1968 at approximately 0700 and required to report back to the infantry hall on 14 May 1968 for graduation and commissioning. g. Photograph reflective of the applicant, Mr. N_ P_ and fellow Soldiers of 5th Platoon. h. Email communication, reflective of conversations occurring between the applicant and HRC (2016) regarding his retirement points. The applicant was advised on 11 January 2016, that his RYE date of 13 May utilized in the calculation of his retirement points was incorrect, instead it should have been 5 June: approximately 1 year less 1 day from the date of his initial entry. The applicant was advised to seek the relief through this Board. i. Self-authored letter dated 28 November 2016, reflective of the applicant's submitted communication to the Supervisor, Veterans Inquiry Section, Human Resource Service Center regarding the adjustment to his RYE date. The applicant notes that he has utilized the previous RYE date (13 May) as the basis for the performance of his military service. He even completed additional periods of active duty to insure he received enough points for a qualifying year. As such, the applicant requested that his RYE date be returned to its original date, award of the 4 points lost resulting in 20 qualifying years and the issuance of a Notification of Eligibility for Retired Pay for Non- Regular Service at Age 60 (20-year letter). j. HRC letter dated 8 December 2016, reflective of the applicant being advised that HRC lacked the authority to adjust his RYE date. k. Email communication reflective of the applicant's communication (2017) with HRC concerning the adjustment of his RYE date resulting in 2 previously qualified years now being recorded as unqualified. He notes that his previously assigned RYE date was established upon his commissioning and remained in effect for 19 years of active and reserve service. The applicant was advised that upon review of his DD Forms 214 and leave and earnings statements they were able to determine that he did not have a 1-day break in service and therefore his RYE was based on his initial entry date (6 June 1967). In a subsequent correspondence the applicant notes that a similar issue in 1978 and again in 1980 wherein his RYE date was changed. However, the date was changed back on both occasions based on the guidance in AR 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records), paragraph 1-8a wherein it provides that "the anniversary date is the date the Servicemember entered into active service or active status in a Reserve Component. Exceptions to calculating anniversary years are--(1) An officer with service as a cadet at a Service academy per Title 10, USC, sections 403, 603, or 903, or in a Senior Reserve Officer' Training Corps Program in accordance with Title 10, USC, sections 2104 and 2107, will have, as an anniversary date, the date the Soldier entered into active service or active status minus any service as a cadet." l. Memorandum – Subject: Reserve Status dated 21 January 1971, reflective of the applicant being advised that he was eligible to be reassigned from the USAR Control Group (Annual Training) to the USAR Control Group (Reinforcement). The applicant elected to be transferred to the USAR Control Group (Reinforcement). m. Email communication reflective of the applicant being advised to request relief through this Board concerning the adjustment of his RYE date. 5. A review of the applicant's most recently issued DA Form 5016 (Chronological Statement of Retired Points) dated 27 September 2022, reflects a total of 2328 retirement points (18 years and 1 day). For RYE on 5 June 1973, the applicant accumulated 47 retirement points; RYE 5 June 1988, the applicant accumulated 49 retirement points. BOARD DISCUSSION: 1. The applicant's request for a personal appearance was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was warranted. The Board carefully considered the applicant's contentions, the military record, and regulatory guidance. One possible outcome was to deny relief. However, the majority of the Board members found sufficient the evidence of points accrued that had not been otherwise considered in the calculation of the applicant’s points. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :X 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 the following Retirement Years ending on: • Retirement Year: 5 June 1973 – by adding 3 points resulting in a total of 50 points • Retirement Year: 5 June 1988 – by adding 1 point resulting in a total of 50 points 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 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 ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 140-185 (Army Reserve Training and Retirement Point Credits and Records), 25 February 1966 in effect at the time of the applicant being appointed a commission provides the Retirement Year will be from: * The date of acceptance of appointment in a Reserve Component * The date of initial enlistment in a Reserve Component or enlistment in a Reserve Component after a break in service * The date of transfer to the Reserve Component upon release from active duty provided the individual was not a member of the reserve Component upon entry on active duty * The date transferred from an inactive status to an active status while serving as a member of a Reserve Component a. The Retirement Year will continue through the day preceding the annual anniversary thereof and will not change as long as the member has continuous service in an active status in the Regular and/or Reserve components of any of the Armed Forces. The Retirement Year will change when there is a break in active status (i.e., complete separation from the service, transfer to the Inactive Status List of the Standby Reserve, assignment to USAR Control Group (inactive), or assignment to USAR Control Group (Retired)). A new Retirement Year will be established after a break in the active status of the member. b. A minimum of 50 retirement point credits earned within 1 retirement year constitutes a qualifying year creditable for retirement. In the event of separation or removal from an active status, a proportionate part of the minimum 50 retirement point credits earned during a retirement year will be credited as a partial qualifying year for retirement. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicant's do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004338 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1