IN THE CASE OF: BOARD DATE: 30 January 2023 DOCKET NUMBER: AR20220006199 APPLICANT REQUESTS: through counsel: . correction of his record to show he was credited with the necessary time to qualify him for a Reserve retirement . In the alternative, the Board waive the rule that requires the last six-years of his service be considered good years to qualify him for a Reserve retirement . A personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . Counsel statement . Applicant declaration . Officer Record Brief (ORB) . Orders Number C-08-420478, 12 August 2004 . Orders Number C-06-417677, 28 June 2004 . Orders Number C-04-408421, 13 April 2004 . Orders Number C-06-115616A01, 5 March 2004 . Memorandum, Subject: Resignation Request . AHRC Form 249-2-E (Chronological Statement of Retirement Points) . Memorandum, Subject: Request for Exemption from Mobilization Order to Active Duty . U.S. Army Reserve (USAR) Personnel Command letter, 1 April 2004 . Applicant letter . Excerpt Department of Defense Instruction (DODI) 1215.07 (Service Credit for Non-Regular Retirement) . Records screenshot FACTS: 1. The applicant did not file within the 3-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 through counsel in pertinent part: a. The chronological statement of retirement points dated 21 October 2014, reflects that the applicant has 20 qualifying years for retirement. He had previously undertaken efforts to correct previous point calculations that reflected he was just short of his 20 qualifying years. The Army currently recognizes that he has 20 qualifying years for retirement. b. Despite having 20 qualifying years for retirement, the applicant is currently not eligible for Reserve retirement because of a rule in place at the time of his resignation that required that the last six years of his Reserve service be considered "good years." This Board should waive this requirement for him for several reasons. c. The denial of Reserve retirement eligibility in this case would be an entirely inequitable result on these facts. As outlined in the timeline above, the effective date of the applicant's resignation was 21 January 2005. The Department of Defense and Army subsequently changed the rule barring him from Reserve retirement eligibility. In DODI 1215.07 (dated 24 January 2013), Enclosure 3, paragraph (2)(a)(3) provides: "For the Service member who completed the years of qualifying service on or after 25 April 2005, there is no minimum Reserve Component service requirement." The applicant's resignation dated is just short of 25 April 2005, the date after which he would qualify for relief and eligibility under this rule change. d. The evidence contained herein demonstrates that various administrative staff members had assured the applicant that he had completed the requisite requirements for Reserve retirement eligibility. The applicant relied upon these assurances in good faith, given that these individuals were administrative staff tasked with helping members like the applicant navigate these confusing rules and requirements. To the extent their advice was incorrect, the applicant should not be punished because of his good faith and detrimental reliance on the representations of those staff members. e. In addition to his detrimental reliance on the administrative staff at the time, the timing of the applicant's resignation was also influenced by a memorandum issued to him by the U.S. Army Human Resources Command (HRC). A memorandum from Personnel Actions Service Directorate (dated 1 April 2004) states: "You are approved for retention to complete 20 qualifying years of service for retired pay as defined by Title 10, United States Code, section 1331." This memorandum gave the applicant every reason to believe that he would be retained in the Service until he had sufficient time for his 20 years of qualifying service. f. Critically, as the applicant outlines in his declaration and as reflected in his memorandum at, he would not have resigned when he did if he had been aware that he would not be eligible for Reserve retirement at the time of his resignation. g. In conclusion, we respectfully submit that the only logical conclusion is that the applicant receive constructive service credit for the balance of time necessary to qualify him for Reserve retirement eligibility. In the alternative, we request the Board waive the rule (in place at the time of his resignation) that required that the last six years of his Reserve service be considered "good years" so that he will qualify for Reserve retirement eligibility. To deny him this credit would be unfair, unjust, and inequitable. 3. A review of the applicant's service record shows the following: a. On 8 January 1981, the applicant entered the U.S. Army Reserve (USAR) as a commissioned officer. b. On 6 October 1985, the applicant resigned his USAR commission and entered active duty as a commissioned officer. c. On 14 March 1988, the applicant was honorably released from active duty and transferred to the USAR Control Group (Reinforcement). He completed 12 years, 5 months, and 9 days of net active service with 4 years and 19 days of prior inactive service. d. On 15 March 1988, the applicant was appointed as a Reserve commissioned officer and executed an oath of office in the rank/grade of major (MAJ)/O-4. e. On 19 February 2004, HRC informed the applicant he had been considered for promotion by a Department of the Army Reserve Components Selection Board but was not selected. f. On 14 December 2004, HRC informed the applicant he had been considered for promotion by a Department of the Army Reserve Components Selection Board but was not selected. g. On 21 January 2005, Orders Number D-01-502391 issued by HRC honorably discharged the applicant from the USAR. h. DA Form 5016 (Chronological Statement of Retirement Points) shows the applicant completed 20 years and 1 days of qualifying service for retirement. All years of service met the minimum 50 points for a good year towards a Reserve retirement with the exception of: . retirement year ending 7 January 1999 (17 points) . retirement year ending 7 January 2002 (15 points) . retirement year ending 7 January 2003 (35 points) . retirement year ending 7 January 2004 (28 points) . retirement year ending 7 January 2005 (15 points) . retirement year ending 21 January 2005 (1 point) 4. The applicant provides: a. Applicant declaration wherein he reiterates counsels opening statement. b. ORB showing the applicant's personnel information to include assignment information, awards, basic active service date, and pay entry basic date. c. Orders Number C-08-420478 issued by HRC which reassigned the applicant from a Troop Program Unit (TPU), Headquarters, Special Operations Command to Special Operations J-1, effective 12 August 2004. d. Orders Number C-06-417677 issued by HRC which reassigned the applicant from Headquarters, Special Operations Command to Special Operations J-1, effective 28 June 2004. e. Orders Number C-04-408421 issued by HRC which reassigned him from Headquarters, Special Operations Command to Special Operations J-1, effective 9 April 2004. f. Orders Number C-06-115616A01 issued by HRC which amended Orders Number C-06-115616 pertaining to his reassignment to the Department of State – , , and authorized him to drill as an Individual Mobilized Augmentee. g. Memorandum, Subject: Resignation Request wherein the applicant tendered his resignation as a Reserve officer under the provisions of Army Regulation (AR) 135-175 (Separation of Officers), chapter 6, section III. h. AHRC Forms 249-2-E showing on 21 October 2014 the applicant completed 20 years of qualifying service for retirement. On 15 April 2004 he completed 20 years and 1 days of qualifying service for retirement. On 18 March 2004 he completed 19 years, 2 months, and 7 days of qualifying service for retirement. On 12 February 2004 he completed 19 years, 2 months, and 7 days of qualifying service for retirement. i. Memorandum, Subject: Request for Exemption from Mobilization Order to Active Duty wherein the applicant requested exemption from mobilization to active duty due to him being a U.S. Government employee scheduled to deploy to Afghanistan. j. USAR Personnel Command letter wherein the USAR Personnel Command notified the applicant he was approved for retention to complete 20 qualifying years of service for retired pay as defined by Title 10, USC, section 1331. k. Applicant letter wherein he reiterates counsels opening remarks as it pertains to him being unable to qualify for a Reserve retirement. l. Excerpt DODI 1205.07 dated 24 January 2013, which provides guidance on Reserve retirements. m. Records screenshot of the applicant's official military personnel file. 5. On 20 September 2022, in the processing of this case and advisory opinion was obtained from HRC, Chief, Operations and Readiness Division, who recommended the following: a. HRC has reviewed the applicant's military records and determined that he served in the USAR for 4 credible years, the Regular Army for 13 years, 2 months and 7 days, then the USAR for 6 years, but with only 2 credible years earning at least 50 points in each year. b. In accordance with AR 135-180 (Retirement for Non-Regular Service), paragraph 2-1a (3), Eligibility for retired pay, the service member must have served the last 8 years of his or her qualifying service as a Reserve component Soldier. The last 8 years of qualifying service need not be the last 8 years of military service, nor do they have to be continuous. Title 10, USC, section 1223/National Defense Authorization Act 2003 Subtitle D Section 631 states that from 1 October 2002 -25 April 2005 a member needs to serve 6 years via 8 years of credible service in the USAR to qualify for retired pay. Therefore, it is the opinion of HRC that the applicant is qualified for retired pay and benefits. 6. On 26 September 2022, the applicant through counsel was provided with a copy of the advisory opinion for comment. He did not respond. 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 found that relief was not warranted. The Board carefully considered the applicant’s contentions, the military record, and regulatory guidance. Notwithstanding the HRC advisory, the majority of the Board members found the evidence presented insufficient to determined that the applicant earned sufficient points within the last 8 years of qualifying service to warrant relief. One Board member concurred with the Human Resource Command finding that the applicant did qualify for retired pay and benefits. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X : :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined 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. ADMINISTRATIVE NOTE(S): N/A. 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. AR 135-180 (Retirement for Non-Regular Service) prescribes policies and procedures governing non-regular retirement. a. Paragraph 2-1a(3) states the service member must have served the last 8 years of his or her qualifying service as a Reserve component Soldier. The last 8 years of qualifying service need not be the last 8 years of military service, nor do they have to be continuous. b. Under Title 10, USC, section 12731a RC Soldiers who complete the eligibility requirements in section I will be notified in writing within 1 year after completion of the required service in accordance with AR 140–185 or NGR 680–2. The Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) will be issued to Soldiers credited with 20 years of qualifying service and should be issued prior to discharge or transfer to the Retired Reserve. The Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) will be issued by: (1) HRC for all USAR Soldiers except for those who are within 2 years of qualifying for an active duty retirement and can remain on active duty to complete the required service. The Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) will be issued in the format determined by HRC. 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 applicants 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//