IN THE CASE OF: BOARD DATE: 28 September 2023 DOCKET NUMBER: AR20230003361 APPLICANT REQUESTS: retroactive payment of retirement entitlements effective 10 November 1996. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number C11-298546, 30 November 2022 * Letter, Gray Area Retirements, 30 November 2022 * DD Form 2656 (Data for Payment of Retired Personnel), 26 June 2022 * DD Form 108 (Application for Retired Pay Benefits), 27 June 2022 * Special Orders Number 18AR, 26 January 1973 * Memorandum – Subject: Promotion as a Reserve Commissioned Officer of the Army, Under Title 10 U.S.C., 28 March 1973 * Special Orders Number 234, 28 November 1972 * Army National Guard (ARNG) Retirement Points History Statement, 17 May 2022 * Memorandum – Subject: Notification of Eligibility for Retired Pay at Age 60, 31 October 1975 * Orders Number 53-4, 16 March 1978 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), 28 February 1978 * NGB Form 22a (Correction to NGB Form 22) * Email communication 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 was unaware of the requirement to request entitlement to retired pay upon leaving his former unit. He contests that he was advised that he would receive documentation in the mail but has yet to receive any. Recently he conducted some research and was advised by personnel within the U.S. Army Human Resources Command (AHRC) that he needed to apply for retirement benefits. The applicant believes that the absence of this information upon retirement precluded him from receiving his entitlements upon reaching age 60. Had he been aware of the requirements then, he would have applied for his benefits at age 60 rather than now. 3. A review of the applicant's available service records reflects the following: a. After serving as an enlisted Soldier, on 30 January 1961, the applicant was appointed as a reserve commissioned officer within the Alabama ARNG (ALARNG). b. On 31 October 1975, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60. c. On 28 February 1978, the applicant was honorably released from the ALARNG and transferred into the U.S. Army Reserve Control Group (Retired Reserve). d. On 22 May 1978, the applicant's NGB Form 22 was corrected to reflect "16 years, 10 months, and 8 days" of prior service, "24 years, 2 months, and 27 days" of total service for pay and adjustment of his prior service dates to reflect service in the ALARNG as an enlisted Soldier from 30 November 1953 – 21 July 1960, and commissioned service in the ALARNG from 22 July 1960 – 9 October 1970. e. On 30 November 2020, AHRC issued Orders Number C11-298546 placing the applicant on the retired list, effective 10 November 1996. 4. The applicant provides: a. Letter, Gray Area Retirements, dated 30 November 2022, reflective of AHRC advising the applicant that his application for retirement pay had been approved. b. DD Form 2656 dated 26 June 2022, reflective of the applicant's request for receipt of retirement pay entitlements and Survivor Benefit Plan coverage. c. DD Form 108 dated 27 June 2022, reflective of the applicant's submitted request for retirement pay. d. Special Orders Number 18AR dated 26 January 1973, reflective of the announcement of Federal recognition of the applicant's promotion to the rank of major (MAJ)/O-4, effective 28 November 1972. e. Memorandum – Subject: Promotion as a Reserve Commissioned Officer of the Army, Under Title 10 U.S.C., dated 28 March 1973, reflective of the applicant's promotion to MAJ. f. Special Orders Number 234 dated 28 November 1972, reflective of the applicant's promotion to MAJ, effective 28 November 1972. g. ARNG Retirement Points History Statement dated 17 May 2022, reflective of a chronological account of the applicant's service within the ARNG from 10 November 1952 – 28 February 1978. h. Orders Number 53-4, 16 March 1978, reflective of the applicant being released from the ALARNG on 28 February 1978. i. NGB Form 22 (Report of Separation and Record of Service) dated 28 February 1978, reflective of the applicant being released from the ARNG and transferred into the USAR Control Group (Retired Reserve). j. Email reflective of AHRC advising the applicant that they believed he was not properly counselled prior to being released from the Army and should therefore be able to receive all pay and entitlements owed to him. Further, he is one of several other similarly situated service members. 5. On 29 May 2023, the Chief, Operations and Readiness Division, AHRC, provided an advisory opinion noting that the applicant did not submit his retirement application 9 months prior to his 60th birthday. Title 31 U.S. Code Title 3702 (Authority to Settle Claims) provides that the claim must be received by the official responsible under subsection (a) for settling the claim or by the agency that conducts the activity from which the claim arises within 6 years after the claim accrues. Therefore, the applicant, by law, is not entitled to his full retirement payment of his retirement pay from 10 November 1996 – 30 November 2022. However, AHRC received a list of service members who were not aware of the application process. AHRC requests that the ABCMR take into consideration the insufficiency of guidance from their last unit and their chain of command in this matter. AHRC suggest that all eligible service members in the list provided by the Defense Finance Accounting Service should receive their full retired pay from when they were eligible to the day they applied. 6. On 6 June 2023, the applicant was provided with a copy of the advisory opinion and afforded 15 days to provide comments. He did not respond. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is warranted. 2. The Board concurred with the conclusion of the advisory official that the facts in this case support the relief the applicant seeks. Based on a preponderance of the evidence, the Board determined the applicant’s record should be corrected to show he submitted his application for retired pay prior to reaching age 60. As a result of this correction, the applicant should be paid any additional retired pay he is due. 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 by showing he submitted his application for retired pay prior to reaching age 60. As a result of this correction, he should be paid any additional retired pay he is due. 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. The Barring Act, Title 31, USC, section 3702 states that the Secretary of Defense shall settle claims involving uniformed service members' pay, allowances, travel, transportation, payments for unused accrued leave, retired pay, and survivor benefits. A claim against the Government presented under this section must contain the signature and address of the claimant or an authorized representative. The claim must be received by the official responsible under subsection (a) for settling the claim or by the agency that conducts the activity from which the claim arises within 6 years after the claim accrues. A claim that is not received in the time required under this subsection shall be returned with a copy of this subsection, and no further communication is required. 3. Army Regulation 600-8-7 (Retirement Services Program) provides that members or former members who are within 1 year of eligibility for retired pay for non-regular service (at age 60 or an earlier age) should begin the application process for retired pay. Applications should be received by AHRC no more than 9 months and no less than 90 days before the expected non-regular retirement date. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003361 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1