IN THE CASE OF: BOARD DATE: 28 September 2023 DOCKET NUMBER: AR20220011916 APPLICANT REQUESTS: in effect, a waiver to show he was issued a Notification of Eligibility (NOE) for Retired Pay at Age 60 (20 Year Letter) and placement on the Retired List. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 1 February 2006 * U.S. Army Human Resources Command (HRC) email, 26 September 2022 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: a. He is inquiring about his 20-year retirement letter which he has never received. According to his DD Form 214, the time accrued while in service states 22 years, 10 months, and 3 days but he is being told from the Army that it was 19 years, 10 months and 3 days. b. The creditable number of years that he spent in the Individual Ready Reserve (IRR) does not qualify for 50 points needed within 1 year while spent in the Army to qualify him for his retirement letter which is stated from HRC. He is asking to obtain a waiver from the Army to be able to receive his 20-year retirement letter. Can the Board please assist him in this matter and provide guidance that is needed to complete his time so he can obtain his 20-year retirement letter. Interest should be found in his case because he is just trying to go about obtaining his 20-year retirement letter. He is requesting a waiver so he will be able to receive it. 3. A review of the applicant's official military records show the following: a. He enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program on 7 October 1983. b. On 3 January 1984, he enlisted in the Regular Army for 3 years. c. On 18 December 1986, DD Form 214 shows he was honorably released from active duty and was transferred to the USAR Control Group (Reinforcement). He completed 2 years, 11 months, and 16 days of net active service this period. d. Orders Number C-06-025788 published by the USAR Personnel Center released the applicant from the USAR Control Group (Reinforcement), effective 18 June 1987. e. On 29 September 1989, DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) shows the applicant enlisted in the USAR for 3 years. f. Orders Number D-09-085689 published by the USAR Personnel Center honorably discharged the applicant from the Ready Reserve, effective 6 October 1989. g. On 4 October 2003, DD Form 214 shows he was honorably released from active duty and was transferred to the 99th Regional Support Command, Coraopolis, PA. He completed 4 months and 15 days net active service this period with 3 years, 8 months, and 12 days of prior active service and 16 years, 5 months, and 1 day of prior inactive service. h. On 6 January 2004, DD Form 215 (Correction to DD Form 214) corrected the DD Form 214 ending on 4 October 2003 to show the applicant's separation date as 3 October 2003 and net active service this period as 4 months and 14 days. i. Orders Number 04-162-00043 published by the 99th Regional Readiness Command ordered the applicant to active duty as a member of the Reserve Component in support of Operation Iraqi Freedom with a report date of 15 June 2004. j. On 24 June 2004, Orders Number 176-1007 published by Headquarters, 10th Mountain Division, Fort Drum, NY, and DD Form 220 (Active Duty Report) show the applicant was released from active duty. k. On 13 September 2004, DD Form 4 shows the applicant reenlisted in the USAR for 3 years. l. DD Form 214 shows the applicant entered active duty on 5 October 2004 and was honorably released from active duty and transferred to his USAR unit on 1 February 2006. His DD Form 214 also shows in: * item 12c (Net Active Service This Period) – 1 year, 3 months, 27 days * item 12d (Total Prior Active Service) – 3 years, 4 months, 2 days * item 12e (Total Prion Inactive Service) – 17 years, 7 months, 27 days * item 18 (Remarks) – service in Kuwait and Iraq from 9 December 2004 to 6 December 2005 m. Orders Number D-09-719818 published by the U.S. Army Human Resources Command (HRC), St. Louis, MO, honorably discharged the applicant from USAR, effective 18 September 2007. n. On 16 July 2008, DD Form 215 corrected the DD Form 214 ending on 1 February 2006 to show the applicant's separation date as 8 January 2006 and net active service this period as 1 year, 3 months, and 4 days. o. DA Form 5016 (Chronological Statement of Retirement Points) dated 20 September 2023 shows in pertinent part, the applicant earned a total of: * 553 – Inactive Duty Points * 150 – Extension Course Points * 311 – Membership Points * 2127 – Active Duty Points * 19 years, 9, months, and 3 days Qualifying for Retirement * 2974 – Total Points Creditable 4. The applicant provides an email sent to him from HRC Fort Knox, KY which states, unfortunately, this Command is not authorized to waive creditable service in order to allow for retirement. Please also note that, though considered active service in the USAR, time spent in the IRR only accrues Membership Points (15) and is not sufficient for a good year (50+) points. Though the total calendar years of the applicant's service totals over 23 years, since he had multiple periods in the IRR the creditable service totals less than 20, which is not sufficient for a non-standard retirement. If he disagrees with this decision, he may submit an application to the Army Review Boards Agency. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is warranted. 2. The Board noted the length of the applicant’s service and further noted how close he was to becoming eligible for non-regular retired pay – 2 months and 27 days. The Board found the applicant has sufficient retirement points to be eligible for retirement, but he simply did not complete enough “good” years. That being the case, the Board determined it would be appropriate to redistribute retirement points from a year in which he had more than 50 points to a year in which he did not earn 50 points to make the deficient year a “good” year. After this correction is made, the applicant should be issued a notification of eligibility for retired pay at age 60 and, he should be afforded the opportunity to apply for retired pay that is paid retroactively to the day he reached age 60. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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: * Amending his DA Form 5016 by moving 35 inactive duty points from the retirement year ending 5 October 2004 to the retirement year ending 5 October 1996 * Issuing him a notification of eligibility for retired pay at age 60 * Affording him the opportunity to apply for retired pay to be paid retroactively to the day he reached age 60 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) 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. In pertinent part, it states that 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 will decide cases based on the evidence of record. The ABCMR is not an investigative agency. 3. AR 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) contains Army policy for U.S. Army Reserve (USAR) training and retirement point credit. It also prescribes guidance for USAR unit level strength accounting. a. Paragraph 1-7 (Service requirement for a satisfactory year of service for non- regular retirement) states, a qualifying year of service for non-regular retired pay is a full year during which a Reserve Component (RC) member is credited with a minimum of 50 retirement points. Except as otherwise provided by law, an accumulation of 20 such years is one requirement necessary to qualify for non-regular retired pay. b. Paragraph 3-5 (DA Form 5016) provides that, these statements — (1) Provide a permanent record of the total retirement points Soldiers earn during an anniversary year. (2) Inform Soldiers whether they earned sufficient points for a qualifying year for retirement or retention in an active status. (3) Provide Soldiers an opportunity to review their retirement points to request corrections. The DA Form 5016 is initiated and prepared by HRC from the processing of data furnished manually and utilizing automation. Prepared for Soldiers under HRC command to include obligated enlisted Soldiers who have earned at least one retirement point. Prepared to cover a full anniversary year of active duty for training or active duty. Prepared for all Soldiers regardless of the number of points awarded. Issued annually and upon correction to a record. 4. AR 135-180 (Retirement for Non-Regular Service) implements statutory authorities governing the granting of retired pay for non-regular service to Soldiers in the Army National Guard (ARNG), Army National Guard of the United States (ARNGUS) or the USAR. a. Paragraph 2-2 (Basic qualifying service requirements) states, to be eligible for retired pay at or after the age (60 years of age) specified in paragraph 2–1 (Age requirements), 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, U.S. Code (USC), section 12732; or, (2) Fifteen (15) 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 10 USC 12731b(b) exist. b. Paragraph 2-4 (Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter)) states, (1) 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. 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 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. After a Soldier has been notified of their eligibility for retired pay for non-regular service, the Soldier's eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service performed, unless it resulted directly from the fraud or misrepresentation of the individual concerned. However, the number of years of creditable service upon which retired pay is computed may be adjusted to correct any error, miscalculation, misinformation, or administrative determination, and when such a correction is made the person is entitled to retired pay in accordance with the number of years of creditable service, as corrected, from the date they are granted retired pay. 5. Title 10, USC, section 12731 (Age and service requirements), provides that, a person is entitled, upon application, to retired pay computed under section 12739 (Computation of retired pay) of this title, if the person has attained the eligibility age of 60 years and has performed at least 20 years of service computed under section 12732 (Entitlement to retired pay: computation of years of service) of this title. In the case of a person who completed the service requirements of paragraph (2) (20 years of service computed under section 12732) before 25 April 2005, performed the last six years of qualifying service while a member of any category named in section 12732(a)(1) of this title, but not while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve, except that in the case of a person who completed the service requirements of paragraph (2) before 5 October 1994, the number of years of such qualifying service under this paragraph shall be eight. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011916 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1