IN THE CASE OF: BOARD DATE: 22 August 2022 DOCKET NUMBER: AR20220001893 APPLICANT REQUESTS: in effect, correction of his record to show he was issued a notification of eligibility (NOE) that he served for 20 years for a non-regular retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter * Orders Number D 160-02, dated 9 June 2014 * Excerpt from Department of Defense (DOD) Financial Management Regulation (FMR) * Letter from a Sergeant First Class (SFC) * DA Form 1559 (Inspector General (IG) Action Request), dated 28 June 2018 * Certification of Extract from Records * Itemized Statement of Earnings * DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 14 October 1988 * Orders Number 6-1, dated 13 April 1990 * Letter of Transmittal * Transcript * Letter from the Honorable Mr. dated 3 April 2020 * Letter from Department of the Military to the Honorable dated 2 April 2020 * National Guard Bureau (NGB) Form 23A (Army National Guard (ARNG) Current Annual Statement) * Self-Authored Letter to the Arkansas Adjutant General * Retired Pay Ticket Closure * Personal Notes 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 his application and self-authored letter, in effect: a. He is requesting that his time in serve be corrected to reflect 20 years of service as shown on his NGB Form 23A. At the time of his retirement, he requested that his time in service be corrected and it was not done. Since that time, he has been gathering documentation to verify his actual time in service as 20 years because he did serve 20 years. b. He had never been advised of the process to correct his military records or a time frame for the correction process. He only recently had the information. He is aware that his request for correction of military records is well beyond the standard three-year time frame. He would like to request an exception and he would provide background as to why he did not, in fact, submit the request within the standard time frame. c. The purpose of his request is to correct his time in service to reflect his 20 years of service. d. He was medically retired in 2014. Upon his retirement, he received an NGB Form 23. He informed his unit that his time in service was incorrect to which they responded there was nothing he could do about it and there was nothing they would do about it. His unit deactivated about a year later and he began working with the State Army personnel records sergeant who was also unwilling to help. He and his wife began a long and convoluted journey to locate supporting documentation themselves. e. They looked into correcting his Reserve Officers' Training Corps (ROTC) time as a member of the simultaneous membership program (SMP) student as his NGB Form 23 listed him as non-SMP. He had been advised that regulations had changed and his SMP time was, in fact, counted towards retirement. f. He requested leave and earnings statements to verify his drill pay, but they were not available. He even inquired through the master military pay account in 2019. Eventually, he tracked down his platoon sergeant and he sent a notarized letter stating that the applicant did, in fact, attend all drills as required. g. When he could not verify his pay, it was suggested that he try to locate drill rosters for that time frame. He requested DA Forms 1379 (Reserve Components Unit Record of Reserve Training), but they were unavailable. He and his wife actually drove to the unit that supposedly housed the records, but no one had any idea where they might be nor did they have time to look. He finally ordered certified copies of his personal income information from the Social Security Administration and submitted them to the personnel record's sergeant. None of this was sufficient. h. He spent October 2018 through February 2019 in telephone contact with a gentleman from the Defense Finance and Accounting Service (DFAS) only to call him in early March for him to have no idea who he was or what he was talking about. i. He decided to approach the problem from the beginning, rather than the end, so he started working with the state where he originally enlisted, which was Arkansas. He contacted the Honorable and the Arkansas Adjutant General's office and gave them all the information he had. j. Eventually, in April of 2020, he received information from both the Honorable and the Adjutant General's office that did, in fact, verify his time in service as 20 years, not with the addition of his ROTC SMP time, but by verification of dates on his NGB Form 23. k. At this point, he resubmitted all the documentation and the current updates and correspondence from the Honorable and Adjutant General's office to the state personnel records sergeant to be corrected in his records. The sergeant spent about 10 more months both asking for additional information or copies and not answering or returning his calls. Eventually, the sergeant said he would not be making the correction to his records because he did not believe the documents were authentic. He never once contacted the Adjutant General's office. l. At this point, he reached back out to the Arkansas Adjutant General's office again and was told that they would submit the corrected NGB Form 23 to DFAS. After a couple of months, he contacted DFAS and was told that his file had not been updated. He was given a fax number to fax in his NGB Form 23 and was advised that any changes in his pay may take about a month. He was also advised that it had been done. On 23 September 2021, he received two text messages from DFAS that his update request had been assigned and completed. He really felt like he was getting somewhere. m. After about a month, he submitted an askDFAS inquiry regarding his submission for correction. 13 October 2021 was the very first time in the entire process he heard he could apply to the Board for a correction. His astonishment was tremendous, when he realized that there was a standard three-year window for corrections to military records. He spent many, many, many hours in this process with many different people from his unit, the state personnel records sergeant, the Adjutant General's office, DFAS, U.S. Army Human Resources Command (HRC), Disabled American Veterans and the Veterans of Foreign Wars advisors, and Vet Center employees. He was never told about a DD Form 149 or a three-year window. n. At the three-year point in his quest, he was no where near having documentation or verification that could substantiate his request for correction of time in service. He really did not have that until July of 2020, when he received it from the Adjutant General's office. As he stated, he spent the next 10 months thinking that the state personnel records sergeant would help him get through getting his points corrected and any other paperwork necessary to completing the process. He did not, he just dropped the ball and left the applicant out to dry. After reconnecting with the Adjutant General's office, he is at the point of being back to doing things himself and he is continuing to move forward. o. It is his sincere hope that the Board will take into consideration the extensive time and effort he and his wife have been put into this process and see that they have continuously been working on gathering supporting documentation. Now that he finally has sufficient documentation, he has submitted his DD Form 149 and his documentation. 3. A review of the applicant's official record shows: a. On 14 October 1988, the applicant enlisted in the U.S. Army Reserve (USAR) Control Group ROTC as a Cadet for a period of 8 years. b. On 13 April 1990, Orders Number 6-1 issued by the U.S. Army Third ROTC, provided by the applicant, were published showing the applicant was discharged from the USAR to accept a commission in the U.S. Armed Forces, effective 25 July 1990. c. On 3 November 1990, the applicant completed an Application for Federal Recognition as an ARNG Officer in the rank of second lieutenant (2LT)/O-1. d. On 2 January 1991, the applicant completed an Oaths of Office as a 2LT in the Arkansas ARNG. e. On 14 January 1991, Memorandum, Subject: Letter of Transmittal, provided by the applicant, was completed, and shows the applicant was appointed in the Arkansas ARNG (ARARNG), effective 2 January 1991, in the rank of 2LT. f. On 21 January 1993, the applicant received an NGB Form 22 (Report of Separation and Record of Service) showing he was released from the ARARNG in the rank of 2LT and was transferred to a unit in MT. He completed 2 years, 5 months, and 26 days of net service this period and total service for pay. g. On 22 January 1993, the applicant completed an Oaths of Office as a 2LT in the Montana ARNG (MTARNG). h. On 10 May 1993, the applicant completed a Conditional Release requesting release from the MTARNG to the ARARNG. i. On 11 January 1994, the applicant completed an Oaths of Office as a first lieutenant (1LT)/O-2 in the ARARNG. j. On 1 August 1997, the applicant received an NGB Form 22, showing he was released from the ARARNG and transferred to the USAR Control Group (Individual Ready Reserve). He had completed 4 years, 6 months, and 10 days of net service this period with 4 years, 3 months, and 8 days of prior reserve component service for a total of 8 years, 9 months, and 18 days of total service for pay. k. On 1 April 2000, the applicant enlisted in the ARNG in the rank of sergeant (SGT) for a period of 1 year. l. He completed Oaths of Extension of Enlistment on: * 7 January 2001, for 1 year * 23 April 2007, for 6 years m. His service records were void of enlistment/reenlistment documentation showing he reenlisted in 2002 or after 2007. n. The applicant received three DD Forms 214 (Certificate of Release or Discharge from Active Duty) for performing active duty service, while a member of the ARNG. They show: (1) He entered active duty on 3 February 2001 and was released to his ARNG unit on 8 October 2001. He had 8 months and 6 days of active service this period. There was no information pertaining to prior inactive service. (2) He entered active duty on 1 March 2004 and was released to his ARNG unit on 27 August 2005. He had 1 year, 5 months, and 27 days of net active service this period with 13 years, 8 months, and 11 days of prior inactive service. (3) He entered active duty on 2 August 2006 and was released to Maneuver Training Edinburg, Indiana on 13 January 2008. He had completed 1 year, 5 months, and 12 days of net active service this period with 3 years, 2 months, and 3 days of prior active service and 12, years, 10 months, and 3 days of prior inactive duty service. o. On 1 August 2011, the applicant received an NGB Form 23A, which shows at the time he had 17 years creditable service for retired pay. p. On 30 April 2014, a Physical Evaluation Board (PEB) convened and the PEB determined he was physically unfit for duty and recommended his disposition be permanent disability retirement. q. On 9 June 2014, Orders Number 160-02 issued by the U.S. Army Physical Disability Agency, were published releasing the applicant from duty because of physical disability incurred while entitled to basic pay under conditions that permit his retirement for permanent physical disability. His percentage of disability was 70 percent. He had 9 years, 2 months, and 16 days for disability retirement and 23 years, 11 months, and 19 days for basic pay. On 1 July 2014, the orders were amended changing his retired rank from staff sergeant to 1LT. r. On 13 July 2014, the applicant received an NGB Form 22 showing he had 14 years, 3 months, and 3 days of net service this period with 11 years, 5 months, and 17 days of prior reserve component service. He had 24 years, 8 months, and 20 days of total service for pay and 19 years total service for retired pay. s. On 4 August 2014, an NGB Form 23A was completed and shows the applicant had 19 years creditable service for retired pay. t. On 28 June 2018, the applicant completed a DA Form 1559, which was provided by the applicant. He stated, in effect he was an SMP ROTC student at Southern Arkansas University from August 1988 to July 1990. He was trying to locate his DA Forms 1379 to verify his drill attendance and correct his retirement points. u. On 1 April 2020, an NGB Form 23A was completed and shows the applicant had 20 years creditable service for retired pay. v. His service records are void of a 20-Year letter notifying him of his eligibility for retired pay. 4. The applicant provides the following documents, not contained in his service record, for the Board's consideration: a. An excerpt of DODFMR, May 2005, which states prior provisions of law excluded the SMP from creditable service for commissioned officers effective 13 October 1964. Public Law 104-201, section 507, 23 September 1996 amended these provisions to provide service credit retroactive to 1 August 1979. These amendments resulted in no increase in pay, retired or retainer pay before the date of enactment 23 September 1996. Service in the program for enlisted members who retain that status remains creditable under all provisions. b. A letter from a SFC (Retired) dated 18 October 2019, which states, he was writing to verity the active ARNG drill participation of the applicant. The applicant was an ROTC Cadet at Southern Arkansas University from August 1988 through May 1990. During this time frame, the applicant drilled monthly with his unit. At the time, the author was the applicant's platoon sergeant. The applicant never missed any drill and was always ready and available to provide extra help at the unit. It was an honor for the author to work with the applicant. c. A Social Security Administration Certification of Extract from Records dated 10 January 2020, which includes his itemized statement of earnings from 1988 to 1991, which includes payments from DFAS. The complete statement is available for the Board's review. d. College transcripts, which are available for the Board's review. e. A letter from the Honorable dated 3 April 2020, which states, in effect, the Senator was in touch with the appropriate offices, and he received a response, which he included with his letter to the applicant, from the Arkansas ARNG. f. A letter from the of the Adjutant General to the Honorable dated 2 April 2020, which states in effect: (1) Their research into the inquiry regarding the applicant, determined the applicant would not receive creditable time toward retired pay for his ROTC time; however, their research did reveal that there was an area of unaccounted time and they made the correction on documentation provided to the applicant. This rolled him over to 20 years towards creditable retired pay. (2) The applicant signed his DD Form 4 on 14 October 1988, enlisting in the USAR as a cadet. Block B showed that he was being entered into the USAR Control Group ROTC (i.e., not SMP). Also, in Block E of the enlistment, there was no information showing that he enlisted in the Arkansas ARNG. To the contrary, very specifically in Block 15, it shows the applicant enlisted in the Armed Forces except the ARNG. An order, dated 13 April 1990, discharged him from the USAR Control Group (ROTC). The order, dated 14 January 1991 and NGB Form 337 (Oaths of Office ARNG), prove that he assessed into the ARARNG as a 2LT on 2 January 1991. (3) In reference to his pay documents from the Social Security Administration, they do prove that he was paid from DFAS; however, the document says his pay was for travel, not pay and allowances. They are not disputing he received some sort of pay from DFAS, but the funds were not for Inactive Duty Training (IDT) pay. Their pay professional at the United States Property and Fiscal Office (USPFO) surmise that he could have been paid for his travel to Advance Camp. Any pay and allowances he received, during this time, were from Cadet Command and not the ARARNG. (4) During 1988, the applicant attended IDTs and Annual Training as a Platoon Leader in the unit, but he was not an actual SMP cadet. He performed those duties in accordance with Cadet Command policies, which would not make his time eligible for credible time towards retirement. (5) As they reviewed the applicant's records, they discovered that he concluded his career in another state and requested his interstate transfer file to be imported into a program governing the Retirement Points Accounting Management System (RPAM) Statements. They found that there was an area where he received unaccounted time in the transition between states and made a correction based on his documentation. This rolled the applicant over to 20 years towards creditable retired pay. But based on reviewing his records, the applicant would not receive creditable time toward retired pay for his ROTC time. g. A self-authored letter to the Arkansas Office of the Adjutant General dated 10 June 2021, which states in effect: (1) The applicant had spoken to them on a few previous occasions regarding the correction of his time in serve, an actual 20-Year letter, and notification to DFAS about his correction of time in service. (2) The Adjutant General's Office did, in fact, correct his time in service, which was greatly appreciated. He was still awaiting a 20-Year letter and notification from DFAS that they had corrected his time in service as 20 years. (3) He was medically retired in July 2014. Since the Maryland ARNG continually dropped the ball, this had been a very long process. (4) He appreciated the Adjutant General's Office assistance in helping him get the documentation. h. A Retired Pay On Line Customer Service Ticket, which was closed, and states he had a corrected NGB Form 23 input to his information at DFAS that verified his 20 years time in service. DFAS states, they were unable to process his request because any correction of record must be initiated through his branch of service. Changes to retirement factors are considered to be a correction of military records. He was instructed to complete a DD Form 149. i. Self-authored notes with information pertaining to his research to correct his records, which are available for the Boards review. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the evidence from the NGB Form 23A, dated 1 April 2020, showing the applicant completed 20 creditable years of service for retired pay, the Board concluded there was sufficient evidence to correct the applicant’s record to show he was issued a notification of eligibility (NOE) that he served for 20 years for a non-regular retirement. 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 Army records of the individual concerned be corrected by issuing the applicant a notification of eligibility (NOE) letter showing he served 20 years for a non-regular retirement. 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) 135-180 Retirement for Non-Regular Service states to be eligible for retired pay at or after the age specified in paragraph 2–1, 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. c. Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) a. under Title 10, USC, section 12731a Reserve Component 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 National Guard Regulation 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 the State Adjutant General (Military Personnel Management Office (MPMO/G1) for all ARNG Soldiers serving in an active status in the State, where the eligible Soldier was assigned at the time they become eligible. The Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) will be issued in the format shown in NGR 680–2. d. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220001893 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1