ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 February 2023 DOCKET NUMBER: AR20220005210 APPLICANT REQUESTS: in effect, an amendment to Orders 20-244-00008, dated 31 August 2020, to show Retired Reserve instead of a Discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders 20-244-00008, dated 31 August 2020 * Notification of Eligibility (NOE), dated 29 October 2020 * DA Form 5016 (Chronological Statement of Retirement Points), prepared on 12 April 2022 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 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 a non-select for promotion to lieutenant colonel due to non-completion of military education requirements. He was selected for continued service until his mandatory retirement date (MRD) on 31 August 2020. As of that date, his point calculations were incorrect due to additional periods of service in the Navy and the Army National Guard. Despite extensive efforts to correct the point calculations prior to his MRD, His DA Form 5016 did not show sufficient service to meet retirement eligibility. The issue was corrected within a month after his MRD, but discharge order had already been issued. b. He was told that the discharge order would be revoked and replaced with a transfer order to the Retired Reserve. He followed up several times during the following year, and he was repeatedly told the discharge order would be rescinded, but that never happened. After further follow up, he has now been told that the only way to obtain status as a gray area Retired Reserve straightforward process, as he had included copies of his DA Form 5016, his 20-year letter, and a copy of his discharge order, dated 31 August 2020, which should be amended.” 3. The applicant provides the following documents: a. NOE, issued by the U.S. Army Human Resources Command (HRC), dated 29 October 2020, states he has completed the required years of qualifying Reserve service and is eligible for retired pay upon application at age 60, in accordance with Title 10, U.S. Code, Chapter 1223. b. DA Form 5016, prepared on 12 April 2022, reflects has 25 years and 4 days of qualifying time for retirement. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 6 June 1984, and on 10 August 1996, was commissioned in the U.S. Army Reserve, with continued service without a break in service. b. Orders 20-244-0008, dated 31 August 2020, which shows, he was honorably discharged from the U.S. Army Reserve, effective 30 September 2020, in the rank of major. 5. On 17 January 2023, an advisory opinion was obtained from Headquarters, U.S. Army Reserve Command (USARC), which states, “upon review, USARC determined [applicant]is eligible to a transfer to the Retired Reserve. He received a NOE for Retired Pay at Non-Regular Retirement (20-Year Letter) on 29 October 2020 in accordance with Army Regulation 135-180 “[(Qualifying Service for retired Pay Non-Regular Service)]” . 6. On 19 January 2021 (sic), the applicant responded to the advisory opinion and agreed with the finding and recommendations and requested authorization to the Retired Reserve. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and United States Army Reserve Command (USARC) advisory opinion, the Board concurred with the advising official finding the is eligible to a transfer to the Retired Reserves. The applicant received a Notification of Eligibility for Retired Pay at Non-Regular Retirement (20-year Letter) dated 29 October 2020. Based on this, 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 partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to reflect amendment to Orders 20-244-00008, dated 31 August 2020, to show Retired Reserve instead of a Discharge. 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, 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, has performed at least 20 years of service computed under section 12732 of this title; and in the case of a person who completed the service requirements before 25 April 2005, performed the last 6 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 number of years of such qualifying service under this paragraph shall be 8 years. 3. Army Regulation 135-180 (Qualifying Service for retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve Component (RC) Soldiers. a. Chapter 2 provides eligibility criteria and states, in pertinent part, that in order to qualify for non-regular retirement, a member must have attained age 60 and completed a minimum of 20 years of qualifying service. Paragraph 2-8 defines qualifying service and states, in pertinent part, that an RC Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service. b. Paragraph 2-3, under Title 10, USC, section 1331(d), each RC Soldier who completes the service required under paragraph 2–1 to be eligible for retired pay at age 60 under this regulation will be notified in writing within 1 year after he or she has completed that service. This notification will be issued by the Commanding General, Army Reserve Personnel Center at the time 20 satisfactory years of service is completed. The notification will be issued to those individuals credited with 20 years of qualifying service prior to discharge or transfer to the Retired Reserve. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005210 1 1