IN THE CASE OF:   
BOARD DATE:  12 October 2022 
DOCKET NUMBER:  AR20220004369 


APPLICANT REQUESTS:  Credit to retire with 20 years of active federal service (AFS) 
and restoration of his Concurrent Retirement and Disability Payment (CRDP), or  
reinstatement to active status to complete seven months of AFS to reach 20 active years.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record), with the followingenclosures:



•1) Inspector General Letter

•2) Orders/DD Form 214 (Certificate of Release or Discharge from ActiveDuty) for the period ending 30 June 2020

•3) Continuation on Active Duty (COAD) Packet

•4) National Guard Bureau (NGB) Form 23A (Army National Guard AnnualStatement)

•5) Defense Finance and Accounting Service (DFAS) Retired and Annuity PayLetter

•6) DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings

•7) Department of Veterans Affairs (VA) Disability Evaluation SystemProposed Rating, dated 24 July 2019

•8) Regulation Excerpts

•9) VA Disability Ratings, effective 2 July 2020



FACTS: 

1.The applicant states after he received his PEB results he was approved for COADuntil 30 June 2020 to allow him to obtain 20 years AFS. However, due to amisinterpretation in regulation by his State Military Duty Management (MDM) Office, hewas retired with 19 years, 5 months, and 19 days of AFS. The MDM office assured him,that his U.S. Code (USC) 1405 service and AFS time could be totaled to equal 20 yearsAFS for retirement based on disability. However, to qualify for CRDP he must have bothdisability retirement and 20 years of AFS. The Alabama Army National Guard(ALARNG) was unable to correct the error and referred his case to the Army Board for Correction of Military Records (ABCMR). 

2.The applicant's service record shows:

a.On 16 August 1995, the applicant enlisted in the Regular Army for 3-years and20 weeks. He served through an enlistment and reenlistment and was honorably released from active duty (REFRAD) and transferred to the U.S. Army Reserve (USAR) Control Group, Inactive Ready Reserve on 15 January 2002. The DD Form 214, he was issued shows he was credited with completing 6 years and 5 months of net active service. 

b.On 26 November 2003, the applicant enlisted in the ALARNG. He entered activeduty on 9 July 2006 and was honorably REFRAD on 12 September 2008. The DD Form 214, he was issued shows he was credited with completing 2 years, 2 months, and 4 days of net active service this period, with 6 years, 6 months, and 5 days total prior active service, and 3 years, 3 months, and 11 days of inactive service.  

c.On 17 April 2011, the applicant entered active duty and was honorably REFRADon 10 August 2017. The DD Form 214, he was issued shows he was credited with completing 6 years, 3 months, and 24 days of net active service this period, with 10 years, 3 months, and 5 days of total prior active service, and 5 years, 1 month, and 16 days of inactive service.  

d.On 11 August 2017, the applicant entered active duty and was honorablyREFRAD on 24 July 2018. The DD Form 214, he was issued shows he was credited with completing 11 months, and 14 days of net active service this period, with 14 years, 11 months, and 29 days of total prior active service, and 5 years, 10 months, and 19 days of total prior inactive service.  

e.On 25 July 2018, the applicant entered a period of active-duty service. On 31 July2019, he underwent a PEB and was found physically unfit for duty. He was recommended for permanent disability retirement with a 60 percent (%) disability rating. 

f.On 11 January 2020, the Alabama Adjutant General approved the applicant forCOAD until 30 June 2020 to allow him to reach 20 AFS years. 

g.On 10 April 2020, Orders Number 101-0500, issued by Headquarters, U.S. ArmyGarrison, Military Personnel Division (MPD), Fort Rucker, AL, ordered the applicant REFRAD and promoted to Sergeant First Class on 30 June 2020, because of physical disability incurred while entitled to basic pay and conditions for permanent disability. He was ordered to be placed on the retirement list 1 July 2020. This order further shows he was credited with the following: 

•Basic Pay: 23 years, 9 months, and 8 days

•Disability Retirement: 17 years, 10 months, and 19 days

•Section 1405: 18 years, 9 months, 23 days



h.On 30 June 2020, the applicant was honorably retired by reason of permanentdisability. His DD Form 214, shows he was credited with completing 1 year, 11 months, and 6 days of net active service this period, with 15 years, 11 months, and 13 days of total prior active service, and 5 years, 10 months, and 19 days of total prior inactive service. He was also honorably discharged from the ALARNG on the same date. His National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and Record of Service) shows he was credited with 16 years, 7 months, and 5 days of net service this period, and 24 years, 7 months, and 5 days of total service for retired pay. 

i.On 13 August 2020, the Headquarters, U.S. Army Garrison, Personnel ServicesBranch issued a memorandum requesting amendments to the applicant's DD Form 214, for the period ending 30 June 2020, to read:  

•Item 12D (Total Prior Active Service) to 17 years, 6 months, and 13 days

•Item 12E (Total Prior Inactive Service) to 4 years, 3 months, and 19 days



j.On 14 August 2020, Headquarters U.S. Army Garrison, MPD, issued OrdersNumber 227-0508 amending Orders Number 101-0500 by changing the applicant's credited time as follows:  

•Disability Retirement: 19 years, 5 months, and 19 days

•Section 1405: 20 years, 3 months, and 21 days



k.The applicant's NGB Form 23A (ARNG Current Annual Statement), dated15 December 2020, shows he was credited with 7,567 Total Career Points towards retirement and 24 years, 7 months, and 5 days of creditable service towards retirement pay. His ARNG 1405 Worksheet, dated 15 December 2020 shows he was credited with 20 years, 9 months, and 6 days of Total 1405 Service.  

l.On 19 March 2021, the Joint Forces Headquarters Alabama National Guard,Office of the Inspector General, issued a letter stating, in pertinent part: 

a.They conducted a thorough inquiry into the applicant's request to "fix hisretirement pay." They worked with State MDM and NGB; however, the appropriate form of redress for this issue is the ABCMR. On 6 May 2019, the applicant was found medically unfit for duty by the PEB with over 18 years of AFS. On 11 January 2020, the Adjutant General approved a COAD packet in accordance with Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) to allow theapplicant to attain 20 years AFS. Due to an interpretation error in Department of the Army (DA) Pamphlet 635-40 (Procedures for Disability Evaluation for Retention, Retirement, or Separation), he was retired on 30 June 2020 with 19 years, 5 months, and 19 days of AFS. The error occurred when his Title 10 USC 1405 service was added to the AFS time totaling 20 years, 3 months, and 21 days. As a result of the error, he is only eligible to receive CRDP payment based on non-regular reserve retirement at retirement age in accordance with Department of Defense (DoD) 7000.14-R (Financial Management Regulation), Volume 78, Chapter 64.  

b.Upon his retirement, he was transferred to the USAR Control Group (Retired) andthe ALARNG does not have the authority to revoke or amend his retirement order. 
Any adjudication or review will need to be processed by the ABCMR.  

3.The applicant provides the documents listed above, which includes a VA decisionletter that shows he was granted a service-connected disability rating of 100%, effective1 July 2020.

4.Combat-Related Special Compensation (CRSC) and CRDP are programs created byCongress in Public Law 108-136 to allow eligible military retirees to receive monthlyentitlements in addition to retired pay. The purpose of these entitlements is to recoversome or all of the retired pay that military retirees waive for VA disability compensation.

•CRSC is a special compensation for combat-related disabilities; it is non-taxable,and retirees must apply to their Branch of Service to receive it

•CDRP is a restoration of retired pay for retirees with service-connecteddisabilities, and it is taxable; no application is required; eligible retirees receiveCRDP automatically



BOARD DISCUSSION:  

1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that relief was warranted. The Board carefullyconsidered the applicant's record of service, documents submitted in support of thepetition and executed a comprehensive and standard review based on law, policy andregulation.  Upon review of the applicant’s petition, available military records and theJoint Forces Headquarters Alabama National Guard advisory opinion, the Boardconsidered the advising official opine finding the applicant was retired on 30 June 2020with 19 years, 5 months, and 19 days of AFS. The error occurred when his Title 10 USC1405 service was added to the AFS time totaling 20 years, 3 months, and 21 days. As aresult of the error, he is only eligible to receive CRDP payment based on non-regularreserve retirement. The Board agreed, based on public law the applicant must have 20years for entitlements to a regular retirement unless there is a TERA available.











2.The Board agreed with the intent of the Alabama Adjutant General who approved theapplicant for COAD until 30 June 2020 to allow him to reach 20 AFS years intent was tobring the applicant. The Board found based on the applicant’s leadership and thereintent due to an misinterpretation of the regulation at no fault of the applicant, he shouldbe provided the opportunity to service to reach his 20 years of service. The Boardagreed the applicant should be allowed to receive credit to retire with 20 years of activefederal service (AFS) and restoration of his Concurrent Retirement and DisabilityPayment (CRDP). Therefore, the Board granted relief.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 to allow the applicant to receive credit to retire with 20 years of active federal service (AFS) and restoration of his Concurrent Retirement and Disability Payment (CRDP). 


Microsoft Office Signature Line...
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.Army Regulation 135-180 (Qualifying Service for retired Pay Non-Regular Service)implements statutory authorities governing the granting of "retired pay" to Soldiers andformer Reserve components (RC) and ARNG Soldiers. Chapter 2 provides eligibilitycriteria and states, in pertinent part, that in order to qualify for non-regular retirement, amember must have:

•attained age 60

•completed a minimum of 20 years of qualifying service

•paragraph 2-8 defines qualifying service and states, that an RC Soldier mustearn a minimum of 50 retirement points each retirement year to have that yearcredited as qualifying service



2.Army Regulation 140-185 (Training and Retirement Points Credits and Unit LevelStrength Accounting Records) contains Army policy for ARNG training and retirementpoint credit. Paragraph 1-7 states a qualifying year of service for non-regular retired payis a full year during which a ARNG member is credited with a minimum of 50 retirementpoints. Except as otherwise provided by law, an accumulation of 20 such years is onerequirement necessary to qualify for non-regular retired pay.

3.Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or
Separation), provides the following guidance.

a.4-29. Final disposition for unfit Soldiers on active duty with 18 but less than 20
years active Service provides the provisions of law in 10 USC on the retention of Soldiers on active duty after they complete 18 but less than 20 years of active Service vary in addressing application to Soldiers who are determined unfit due to physical disability. In the interest of equity and uniformity across all components, these Soldiers will be dispositioned as set forth below. Retention under Secretarial review. When the Assistant Secretary of the Army (Manpower and Reserve Affairs) directs that a Soldier pending separation with or without entitlement to disability benefits be retained to 20 years of active Service, the Soldier will be managed as a COAD.  

b.6–6. Length of continuation provides approval authority will determine the lengthof continuation on a case-by-case basis. Final determinations for enlisted Soldiers will take into consideration established dates for ETS and RCPs. An approved period of continuation, to include to 20 years of active Service, does not constitute a waiver of disability disposition at expiration of the continuation period. A request for COAD may be approved for any period up to the last day of the month in which the Soldier attains 20 years of active Service, but will not exceed the RCP, if applicable, for the current grade. (There are no RCPs for 32 USC AGRs below 20 years active Service.) The continuation period will not exceed the maximum service time an officer is allowed to serve in accordance with 10 USC.  
 
4.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 12 (Retirement for Length of Service), provides the following guidance:  
 
a.  Soldiers who have completed 20 but less than 30 years of active federal service and who have completed all required service obligations are eligible, but not entitled, to retire upon request. Except as indicated in chapter 16 of this regulation, unless restricted in this section, Soldiers who have completed 19 or more years of active federal service may apply for retirement. The request must be made within 12 months of the requested retirement date except as indicated in chapter 16. 
 
b.  Soldiers must complete at least 20 years of active federal service and all service  
obligations (see para 12 – 8) by the requested retirement date.  
 
c.  Soldiers who are under suspension of favorable personnel action under AR 600 –  
8 – 2 are not precluded from submitting DA Form 2339. Requests for retirement will be considered on a case-by-case basis by the local retirement approval authority.  
 
d.  12–14. Responsibility of retirement authority Commanders specified in paragraph  
12 – 2 will ensure that no Soldier is retired who has not completed at least 20 years of active federal service that is creditable for retirement.  
 
5.  DoD 7000.14-R Financial Management Regulation, Chapter 64, CRDP, prescribes that effective 1 January 2004, eligible military retirees are entitled to concurrent receipt of both retired pay and VA disability compensation. The CRDP program provided for a 10-year phase-out of the offset to retired pay due to receipt of VA disability compensation. The CRDP program provides a restoration of monthly retired pay calculated on the circumstances of each entitled individual. A qualifying service-connected disability is a service-connected disability (or combination of service-connected disabilities) that the VA rates at 50% or higher. Physical Disability Retirement Members retired for physical disability who have less than 20 years of service creditable for the purposes of computing retired pay are not eligible for CRDP. 
 
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