IN THE CASE OF: BOARD DATE: 5 January 2023 DOCKET NUMBER: AR20220007298 APPLICANT REQUESTS: in effect- * he be issued a 20-year letter for eligibility to receive retirement pay at age 60 * telephone/video appearance before the board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Army National Guard (ARNG) Retirement Points History Statement, page 1, 30 August 2006 * DA Form 199 (Physical Evaluation Board (PEB) Proceedings, 22 February 2008 * Disability Grade Determination, 15 May 2008 * NGB Form 22 (Report of Separation and Record of Service), 21 June 2008 * U.S. Army Physical Disability Agency (USAPDA) Scanning Record, 30 June 2008 * Orders 190-024, 8 July 2008 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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, he completed over 22 years of qualifying service for retirement. 3. A review of the applicant's record shows he was born in September 1959. Having prior service in the Regular Army (RA) and U.S. Army Reserve (USAR), the applicant enlisted in the Virginian ARNG (VAARNG) on 27 July 2000. 4. On 30 August 2006, the applicant was issued a Twenty-Year Letter which notified him of his eligibility for retired pay upon application at age 60. 5. The applicant appeared before a PEB on 22 February 2008. The PEB recommend permanent disability retirement and assigned his unfitting conditions 40-percent disability rating. The applicant concurred with this recommendation on 21 March 2008. 6. Orders D138-01, issued by the USAPDA, dated 17 May 2008, show the applicant was placed on the Permanent Disability Retired List (PDRL) on 21 June 2008. These orders further show that he completed 12 years, 9 months, and 8 days of qualifying service for disability retirement. 7. On 21 June 2008 he was transferred to the Retired Reserve by reason of medical unfitness for retention in accordance with NGR 600-200 (Enlisted Personnel Management), paragraph 8-35l(8). 8. On 16 October 2009, the VAARNG informed the applicant that he had been erroneously issued a 20 Year Letter and Notification of Eligibility for Retired Pay on 30 August 2006 due to an administrative error in the "SIDPER/RPAM” systems that was not detected until after the letter was issued. The memorandum states: a. The applicant was mobilized from 7 February 2003 through 6 June 2004. After returning from mobilization, he received a DD Form 214 that brought him off mobilization and dropped him out of the active duty pay system. He had medical issues that authorized him incapacitation pay but he did not attend Inactive Duty for Training (IDT) drills. He remained coded as being mobilized in the SIDPERS database until 21 June 2008 at which time he was discharged from the VAARNG. The 20 Year Letter was generated based on the good years received due to the continuous active duty points from February 2003 until June 2008. b. The error was found when he requested a copy of his DD Form 214 for the period 7 June 2004 through 21 June 2008. c. His RPAM record was corrected to terminate his Active Duty/Mobilization effective 6 June 2004 and reverted him to a B1/Traditional status effective 7 June 2004. While on Incapacitation status the applicant did not drill and therefore did not receive the minimum 50 points required for a good retirement year. However, he was medically separated and was eligible for the 15 year medical retirement. As of the date of the memorandum, the applicant had 19 years, 11 months, and 8 days creditable towards retirement. 9. The applicant received a notification of eligibility for Retired Pay at age 60 (15-Year Letter). His ARNG Retirement Points History Statement, dated the same day 2009 shows: * he served in the RA from 29 July 1977 to 29 April 1983 * he served in the USAR Troop Program Unit from 17 February 1984 to 16 February 1985; from 17 May 1986 to 16 May 1988; and from 18 May1991to 9 December 1997 * he served in the ARNG from 27 July 2000 to 6 February 2003 * he was mobilized as a ARNG member from 7 February 2003 to 6 June 2004 * he served in the ARNG from 7 June 2004 to 21 June 2008 * of note are the following retirement point information - * 20030727 to 20040606, he earned 0 retirement points, not a qualifying year * 20040607 to 20040726, he earned 331 retirement points, 1 qualifying year * 20040727 to 20050726, he earned 104 retirement points, 1 qualifying year * 20050727 to 20060726, he earned 35 retirement points, not a qualifying year * 20060727 to 20070726, he earned 15 retirement points, not a qualifying year * 20070727 to 20080621, he earned 14 retirement points, not a qualifying year * he earned 3636 points for retired pay; and 19 years, 11 months, and 8 days of creditable service for retired pay 10. His record contains an ARNG Current Annual Statement, dated 7 December 2021, which also shows he completed 19 years, 11 months, and 8 days of creditable service for retired pay. 11. On 6 May 2022, the U.S. Army Human Resources Command, Gray Area Retirements, notified the applicant that he was ineligible for Concurrent Retirement and Disability Pay (CRDP) because he completed less than the minimum 20 qualifying years of service. 12. The applicant provides: a. An ARNG Retirement Points History Statement, dated 20 August 2006, which shows the applicant earned 4233 retirement points creditable for retired pay, completed 20 years, 11 months, and 8 days of creditable service for retired pay. This statement lists 27 July 2006 as the begin date of his RYE year and lists dashes in the end date column of this RYE year. It further shows: * 2003 07 27 to 2004 07 26, he earned 366 retirement points, 1 qualifying year * 2004 07 27 to 2005 07 26, he earned 365 retirement points, 1 qualifying year * 2005 07 27 to 2006 07 26, he earned 365 retirement points, 1 qualifying year b. A Disability Grade Determination dated 15 May 2008, which shows the President, Army Grade Determination Review Board, Army Review Board Agency, determined the highest grade in which he served satisfactorily for the purpose of computation of disability retirement or separation pay was his current grade of E-4/Specialist. 13. The applicant was provided with a copy of this advisory opinion. He responded with faxed copies of his discharge orders, revocation orders, and Retired Reserve orders. He also asked to be reassigned to a troop program unit in order to complete 20 years of service. 14. AR 135-80 (Qualifying Service for Retired Pay, Non-Regular Service) states that a Reserve Soldier must have a minimum of 20 qualifying years under Title 10, U.S. Code, section 12732 in order to be eligible to receive retired pay. 15. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Applicants do not have a right to a hearing. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board found the evidence clearly shows the applicant did not complete 20 years of service qualifying for retired pay at age 60. While it is unfortunate the applicant was erroneously issued a 20-Year Letter, the Board found the corrective action taken when the error was discovered was appropriate. The applicant was properly issued a 15-Year Letter, which was appropriate based on his record of service. The Board determined there is no basis for issuing the applicant a 20-Year Letter. 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. 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, U.S. Code, 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 Army Board for Correction of Military Records (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, U.S. Code, sections 12731 through 12740 authorize retired pay for Reserve component military service. Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60. Section 12731 states a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person has attained the eligibility age applicable under the appropriate subsection and has performed at least 20 years of service computed under section 12732 of this title. 3. The National Defense Authorization Act for Fiscal Year 1995 (NDAA FY 1995) (Public Law 103-337), Section 517, amended 10 USC 12731a to allow Reserve component Soldiers who were involuntarily separated on or after 23 October 1992 because of medical unfitness to elect transfer to the Retired Reserve or Reserve retirement pay at age 60 based on a minimum of 15 years of qualifying service while a member of the Active Reserve. 4. Title 10, U.S. Code, Section 12731b now provides that in the case of a member of the Selected Reserve of a Reserve component 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 purposes of entitlement to retirement pay, determine to treat the member as having met the required 20 years of qualifying service. The Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay if the member has completed at least 15 years, and less than 20 years of qualifying service. 5. Army Regulation 135-180 (Army National Guard and Army Reserve-Retirement for Non-Regular Service), effective 28 April 2015, implements statutory authorities governing the granting of “retired pay” to Soldiers and former Reserve components Soldiers. Chapter 2 states: a. That to be eligible for retired pay an individual does not need to have a military status at the time of application for retired pay but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and (3) served the last 8 years of his or her qualifying service as a Reserve Component (RC) Soldier. The requirement to serve the last 8 years in an RC was later amended to the last 6 years (5 October 1994-24 April 2005), and on 25 April 2005 this requirement was reduced to zero (0) years. This regulation also specifies that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within one year after he/she completes the service. b. Qualifying service as service performed in an active status in a Reserve component or in active federal service. After 30 June 1949, a reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service. c. A partial qualifying year is any period less than 12 full months in which the retirement points credited to a Service member, when computed proportionally are equal to or greater than 50 retirement points. 6. AR 15-185 (ABCMR) states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Applicants do not have a right to a hearing. The Secretary of a military department, acting through a board for correction of military records, has authority to change any military record when necessary to correct an error or remove an injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007298 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1