IN THE CASE OF: BOARD DATE: 21 February 2023 DOCKET NUMBER: AR20220007631 APPLICANT REQUESTS: the date of his reduced-age retirement be changed on his NGB Form 23A (Army National Guard (ARNG) Current Annual Statement) based on his time spent on Active-Duty status after 28 January 2008. 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) * National Guard Bureau (NGB) Form 23A (Army National Guard (ARNG) Current Annual Statement),10 September 2021 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 in pertinent part that he is currently eligible for receipt of retired pay on 21 April 2036. However, he contests that this date should be reduced by 29 months and 17 days in accordance with the National Defense Authorization Act (NDAA) of 2008 because of the time that he served on active duty after 28 January 2008. 3. A review of the applicant's available service records reflects the following: a. Following his 6 years of service in the U.S. Air Force, on 16 August 2007, the applicant enlisted in the ARNG. b. On 21 April 2009, the applicant was ordered to active duty in accordance with Title 10, USC, section 12302 in support of Operation Enduring Freedom. c. On 27 April 2010, the applicant was released from active duty. DD Form 214, item 12c. (Net Active Service this Period) reflects: 1 year and 7 days. d. On 16 June 2017, the applicant was ordered to active duty in accordance with Title 10, USC, section 12302 in support of Operation Freedom's Sentinel. e. On 31 May 2018, the applicant was released from active duty. DD Form 214, item 12c. reflects 11 months and 15 days. f. On 16 July 2021, Headquarters, U.S. Army Physical Disability Agency issued Orders Number D 197-18 releasing the applicant from assignment and duty due to a permanent physical disability further placing him on the retired list, effective 15 August 2021. g. On 30 November 2022, the applicant was issued a Notification of Eligibility for Retired Pay for Non-Regular Service (15 Years) indicating that he would be eligible for retired pay upon application at age 60 unless he qualified for reduced age eligibility in accordance with Title 10, USC, section 1273 1(f). 4. The applicant provides the following a: a. DD Form 214 for the period ending on 30 September 2013, reflective of his service on active duty from 15 April 2013 – 30 September 2013. Item 12c. reflects: 5 months and 16 days. Item 18 (Remarks) is void of evidence related to a contingency operation that this period of active duty was performed in support of. The orders referenced (Orders Number 241-030), issued on 29 August 2013 reflect "Active Duty Training (ADT)." Review of the applicant's orders history indicate that multiple ADT orders were issued during this period. b. DD Form 214, for the period ending on 8 April 2016, reflective of the applicant's service on active duty from 28 November 2015 – 8 April 2016. Item 12c. reflects: 4 months and 11 days. Item 18 is void of evidence related to a contingency operation that this period of active duty was performed in support of. c. NGB Form 23A dated 10 September 2021, reflective of a chronological account of the applicant's 17 years of qualifying service towards retirement. The applicant's established Retirement Pay Eligibility Date (RPED) reflects 21 April 2036. 4. On 4 December 2022, the NGB provided an advisory opinion recommending partial approval of the applicant's request. a. The applicant retired in 2021 with a total of 17 years creditable service towards retirement pay. His NGB Form 23A prepared on 10 September 2019 shows his Retirement Pay Eligibility Date (RPED) as 21 April 2036. The applicant is requesting his current RPED be reduced by 29 months and 17 days, or to 4 November 2033, based on his time spent on Active-Duty status after 28 January 2008 according to the National Defense Authorization Act (NDAA) 2008 and 2014. b. Based on his packet submission an NGB Form 23A, the applicant served from 2000 to 2021 and retired with a total of 17 creditable service years towards retirement pay. His records show four qualifying times of Active-Duty service after 28 January 2008. He has four separate copies of deployment orders of deployments during fiscal years 2009, 2010, 2017 and 2018, which add up to a total of six qualifying periods, or 18 months. For example, since the NDAA states that qualifying days are credited in periods of 90 days, his first deployment from 1 May 2009 to 30 September 2009 only qualifies the applicant for one period, or 90 days, towards reduced-age retirement because it is only one aggregate 90-day period. c. The National Defense Authorization Act (NDAA) 2008 and 2014 and DoD Instruction 1215.07-30 July 19 provides guidelines and directs implementation of the Reduced Retirement Age for Reserve Component (RC) Soldiers based on Active-Duty performance. The NDAA for 2008 reduces the retirement age for Reserve Component (RC) Soldiers from 60 to a lesser age, but not below age 50 for those who have served on Active Duty (AD) in an eligible status after 28 January 2008. For qualifying service after 28 January 2008, each day an AD tour could count toward a reduction in retirement age but will be credited in aggregates of 90 days only within the Fiscal Year. A day of duty will be included in only one aggregate of 90 days. ARNG Soldiers may be entitled to a reduced age retirement when they are under a call to active service by a governor and authorized by the President or the Secretary of Defense under section 502(f) or 115 and 502(f) of Title 32 USC, but Active Guard Reserve (AGR) duty under section 12301 of Title 10 USC, will not be included as service on active duty for determining eligibility for reduced age retired pay for non-regular service. d. Based on the guidelines of the National Defense Authorization Act (NDAA) 2008 and 2014, it is the recommendation of this office that the applicant’s request be partially approved. The applicant’s request for a reduction of 29 months and 17 days is an incorrect calculation of time, and he is only eligible for a reduction of 18 months. The applicant has been provided the corrected NGB Form 23B from the GAARNG. The new NGB Form 23B, prepared on 29 November 2022, reflects an adjusted RPED of 21 October 2034, which is correct based on the guidelines of NDAA 2008 and 2014. Days of qualifying AD time is credited in aggregates of 90 days, and a day of duty, even though each day counts, is included in only one aggregate of 90 days. Active Guard Reserve duty does not count towards eligibility for reduced age retired pay. e. The Army National Guard Retirement Branch did not provide input for this recommendation. The GAARNG concurs with this recommendation. 5. On 6 December 2022, the applicant was provided with a copy of the advisory opinion and afforded 15 days to provide comments. As of 16 February 2023, the applicant had not responded. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was partially warranted. The applicant's contentions, the military record, and regulatory guidance were carefully considered. a. The 2008 NDAA (and later 2014) directs implementation of the Reduced Retirement Age for Reserve Component (RC) Soldiers based on Active-Duty performance. The 2008 NDAA reduces retirement age for RC Soldiers from 60 to a lesser age, but not below age 50 for those who have served on active duty in an eligible status after 28 January 2008. For qualifying service after 28 January 2008, each day an AD tour could count toward a reduction in retirement age but will be credited in aggregates of 90 days only within the Fiscal Year. A day of duty will be included in only one aggregate of 90 days. b. The evidence shows the applicant served from 2000 to 2021 and retired with a total of 17 creditable years of service towards retirement. His records reflect 4 qualifying times of active-duty service after 28 January 2008. He has four separate deployment orders during fiscal years 2009, 2010, 2017 and 2018, which collectively add up to a total of six qualifying periods, or 18 months. The NDAA states that qualifying days are credited in periods of 90 days, his first deployment from 1 May 2009 to 30 September 2009 only qualifies the applicant for one period, or 90 days, towards reduced-age retirement because it is only one aggregate 90-day period. c. Based on the NDAA guidelines, the Board agreed with the NGB advisory official’s finding that partial relief is warranted. The applicant's request for a reduction of 29 months and 17 days is an incorrect calculation of time, and he is only eligible for a reduction of 18 months. The applicant has been provided the corrected NGB Form 23B from the GAARNG. The new NGB Form 23B, prepared on 29 November 2022 reflects an adjusted Retirement Pay Eligibility Date (RPED) of 21 October 2034 (6 Periods), which is correct based on the guidelines of NDAA. Days of qualifying active-duty time is credited in aggregates of 90 days, and a day of duty, even though each day counts, is included in only one aggregate of 90 days. AGR duty does not count towards eligibility for reduced age retired pay. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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 and Army National Guard records of the individual concerned be corrected by adjusting his NGB Form 23A to show his Retirement Pay Eligibility Date (RPED) as 21 October 2034. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. 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. NDAA Fiscal Year 2008 reduces the retirement age for Reserve Component (RC) Soldiers from 60 to a lesser age, but not below age 50 for those who have served on Active Duty (AD) in an eligible status after 28 January 2008. For qualifying service after 28 January 2008, each day an Active-Duty tour could count toward a reduction in retirement age. However, even though each day counts, days are credited in aggregates of 90 days only within the Fiscal Year. A day of duty will be included in only one aggregate of 90 days. After 10 September 2014, the NDAA has specified that service rendered either in support of contingency operations under a provision of law specified in Section 101(a)(13)(B) of reference (c), or an order to active duty pursuant to Section 12301(d) of reference (c), may now cross into consecutive fiscal years. Active Duty for this purpose, means service in accordance with a call, or order to AD and performed under one or more of the following: Section 688, 12301 (a), 12302, 12304, 12305, 12406, and chapter 15 (insurrection), or under section 12301 (d) of Title 10 USC. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007631 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1