IN THE CASE OF: BOARD DATE: 17 January 2023 DOCKET NUMBER: AR20220005140 APPLICANT REQUESTS: in effect – * a reversal of the decision to erroneously discharge him due to an Enlisted Qualitative Retention Board (EQRB) in 2013 * a corrected National Guard Bureau (NGB) Form 23A (Army National Guard (ARNG) Current Annual Statement) * to be issued a Notification of Eligibility (NOE) for non-regular retirement pay at age 60 * personal Board appearance via video/telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number 172-881, 21 June 2013 * NGB Form 22 (Report of Separation and Record of Service), 15 July 2013 * NGB Form 23A, 11 February 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 was erroneously discharged due to an EQRB in 2013. He did not have a NOE, so he was not authorized to be boarded as stated in Army Regulation (AR) 135- 178 (Enlisted Administrative Separations). When he went to request his retirement, he was told he was not eligible. He started the request for retirement on 30 June 2019. The North Carolina Army National Guard (NCARNG) Retirement Section stated that he was not eligible due to not having a 20-year letter. He was eventually contacted in November 2021. Master Sergeant (MSG) G-1 boards Noncommissioned Officer In Charge (NCOIC) reviewed his records and noticed that he only had 19-years for retirement service. During the EQRB process the G-1 section, nor his command did not take into account his Individual Ready Reserve time and calculated his time of service with his pay entry basic date. b. He was not authorized to go before the EQRB. Per AR 135-178, Chapter 16, paragraph 16-3, zones of consideration for qualitative retention: (1) At least 20 years of qualifying service for non-regular retired pay as determined under the provisions of AR 135-180 (Retirement for Non-Regular Service). He was boarded with less than 20-years of service for retired pay. Per paragraph 16-4, Soldiers not to be considered (a). The Qualitative Retention Board will not consider a Soldier who meets any of the following conditions: (1) Has not completed 20 qualifying years of service for non-regular retired pay by the day before the date the board convenes. The process to get his records fixed to allow him to retire for 20-years creditable service has been long. The retirement section had him work with the Defense Finance and Accounting Service (DFAS) to look for any missing time that is not reflected on his Retirement Points Account Management statement. After that avenue was exhausted MSG took a few months to attempt to see what he needed to do to obtain his 20-years for retirement. 3. A review of the applicant's official military records show the following: a. Having had prior service in the U.S. Army Reserve, the applicant enlisted in the NCARNG on 30 June 2005 for 4 years, 10 months, and 16 days. b. On 2 September 2011, the State of North Carolina, Joint Force Headquarters, Raleigh, NC, published Orders Number 245-802 promoting the applicant to sergeant (SGT)/E-5, effective on with a date rank of 1 October 2011. c. On 15 April 2013, a memorandum shows the NCARNG Adjutant General informed the applicant that he had not been selected for retention in the NCARNG by the EQRB that met on 4 to 8 March 2013, in accordance with (IAW) AR 135-205 (Enlisted Personnel Management). Since the applicant was being separated as a result of his non-selection, there was no appeal process IAW AR 135-205. d. On 7 May 2013, DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) shows the applicant extended his enlistment for two months changing his expiration term of service to 15 July 2013. e. Orders Number 172-881 issued by the State of North Carolina, Joint Force Headquarters, Raleigh, NC, discharged the applicant from the NCARNG and assigned him to the Retired Reserve, effective 15 July 2013. f. On 15 July 2013, the applicant was honorably discharged from the NCARNG and transferred to Retired Reserve under the provisions of National Guard Regulation 600- 200 (Enlisted Personnel Management), paragraph 6-36r, by reason of "selective or qualitative retention action." NGB Form 22 shows he completed 8 years and 16 days this period. It also shows, in pertinent part: * prior Reserve Component service – 11 years, 3 months, and 5 days * prior active federal service – 3 years, 6 months, and 21 days * total service for pay – 22 years, 10 months, and 12 days * total service for retired pay – 19 years and 4 days g. NGB Form 23A (Army National Guard Current Annual Statement) dated 6 October 2022 shows the applicant had a total of: * 1929 – active duty points * 2883 – career points * 2868 – points for retired pay * 19 – creditable service years for retired pay 4. On 21 October 2022, the NGB, Chief, Special Actions Branch, provided an advisory opinion for this case and recommended approval. The advisory official stated: a. The applicant requests ABCMR along with NGB review the circumstances leading to erroneous discharge due to an EQRB in 2013, which effected his ability to acquire a grey area retirement from the ARNG. b. The applicant a member of the NCARNG was considered by the EQRB that convened on 4 to 8 March 2013 and was non-selected for continuation in service by the board and received a letter from Major General the NCARNG Adjutant General informing him of the board decision. c. AR 135-205 dated 11 March 2008, states in paragraph 2-4 that a Soldier will not be considered by the board if they have not completed 20 qualifying years of service for non-regular retirement pay by the day before the date the board convenes. During the time period the EQRB board convened the applicant only had 19 years of qualifying service for non-regular retirement pay per the Soldier's ARNG Retirement Point Statement. d. AR 135-178 dated 13 March 2007, paragraph 1-11(a) states that, "a Soldier having completed 18 but fewer than 20 years of qualifying service for retired pay (Title 10, USC, section 12732 will not be involuntarily separated without the approval of the Secretary of the Army or his designated representative. All recommendations for involuntary separation of Soldiers in this category will be sent to Headquarters, Department of the Army (HQDA) (paragraph 1-12) for consideration. e. This office [NGB] finds that there is sufficient evidence to provide a recommendation to the ABCMR to reverse the decision to discharge the Soldier via the EQRB. The applicant was erroneously considered by the 2013 EQRB. The NCARNG should provide the Soldier with an adjusted NGB Form 23 and issue him a NOE for non- regular retirement pay at age 60. The opinion of this office was coordinated with the NCARNG Deputy G-1 and the NCARNG Retirement Section. 5. On 25 October 2022, the applicant's counsel was provided a copy of the advisory opinion to allow comments or rebuttal. Counsel did not respond. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing 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 hearing 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 applicant's military records, the Board found that relief was warranted. The applicant's contentions, his military records, and regulatory guidance were carefully considered. The Board considered his request to review the circumstances leading to his erroneous discharge due to an EQRB in 2013, which effected his ability to acquire a grey area retirement from the ARNG. He was a member of the NCARNG who was considered by the EQRB that convened on 4 to 8 March 2013 and was non-selected for continuation in service by the board and received a letter from the NCARNG Adjutant General informing him of the board decision. a. During the period the EQRB board convened, the applicant only had 19 years of qualifying service for non-regular retirement pay per his ARNG Retirement Point Statement. The regulation stipulated that a Soldier will not be considered by the board if they have not completed 20 qualifying years of service for non-regular retirement pay by the day before the date the board convenes. Additionally, by law (10 USC section 12732), Soldier having completed 18 but fewer than 20 years of qualifying service for retired pay will not be involuntarily separated without the approval of the Secretary of the Army or his designated representative. All recommendations for involuntary separation of Soldiers in this category will be sent to HQDA for consideration. b. The Board reviewed and agreed with the advisory opinion’s finding sufficient evidence to reverse the decision to discharge the applicant via the EQRB. The applicant was erroneously considered by the 2013 EQRB. The NCARNG should provide him with an adjusted NGB Form 23 and issue him a Notification of Eligibility for Retired Pay at Age 60 for non-regular retirement pay at 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 and Army National Guard records of the individual concerned be corrected by: * revoking the decision to discharge the applicant by an Enlisted Qualitative Retention Board (EQRB) in 2013 * showing the applicant continued to serve as a member of the North Carolina Army National Guard until attaining 20 qualifying years of service for non-regular retirement * correcting the Applicant’s NGB Form 23A (Army National Guard (ARNG) Current Annual Statement) to show retirement point credit until attaining 20 qualifying years of service for non-regular retirement * issuing the applicant Notification of Eligibility (NOE) for non-regular retirement pay at age 60 (20-Year Letter) 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. AR 15-185 (ABCMR), states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. It will decide cases based on the evidence of record and it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2–11 states 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. 3. AR 135-178 (Enlisted Administrative Separations) in effect at the time, sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of ARNG of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. Paragraph 1-11(a) provides that, a Soldier having completed 18 but fewer than 20 years of qualifying service for retired pay (Title 10, USC, section 12732 will not be involuntarily separated without the approval of the Secretary of the Army or his designated representative. All recommendations for involuntary separation of Soldiers in this category will be sent to HQDA (paragraph 1-12) for consideration. 4. AR 135-205 (Enlisted Personnel Management) prescribes policies and responsibilities for the Qualitative Retention Program. Paragraph 2-4 provides, in pertinent part, a Soldier will not be considered by the board if they have not completed 20 qualifying years of service for non-regular retirement pay by the day before the date the board convenes. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005140 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1