IN THE CASE OF: BOARD DATE: 20 December 2023 DOCKET NUMBER: AR20230003332 APPLICANT REQUESTS: correction of creditable service for disability retired pay. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number D 339-07, 5 December 2014 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) 8 January 2015 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 his retirement orders incorrectly reflect a calculation of disability retired pay based on 3 years, 2 months, and 20 days. He contests that he completed 12 years, 5 months, and 8 days of total service in the U.S. Army Reserve (USAR). He notes that his NGB Form 22 reflects the additional period of service that he completed while serving as a cadet in the Simultaneous Membership Program (SMP) with the Army National Guard (ARNG). He argues that his total service for disability retired pay should reflect 7 years as reflected on his NGB Form 22. 3. A review of the applicant's available service records reflects the following: a. On 2 August 2002, the applicant enlisted for 8 years in the USAR as a cadet within the Reserve Officers' Training Corps (ROTC). b. On 17 May 2004, the applicant was appointed a Reserve commission for service in the ARNG. c. On 14 February 2005, the applicant was ordered to active duty. d. On 10 December 2007, the applicant was discharged from the NJARNG at the rank/grade of first lieutenant (1LT)/O-2 by reason of termination of State appointment. e. On 11 December 2007, the applicant enlisted in the ARNG for 3 years. f. On 16 June 2008, the applicant was ordered to active duty. g. On 17 August 2008, the applicant was released from active duty. DD Form 214 (Certificate of Release or Discharge from Active Duty), item 12c. (Net Active Service this Period) reflects 3 years 6 months 4 days. Note: This period of service overlaps the previously issued DD Form 214. h. On 5 July 2009, the applicant was released from active duty. DD Form 214, item 12c. reflects 1 year and 20 days; item 12d. (Total Prior Active Service) reflects 3 years, 4 months, and 2 days. i. On 25 March 2014, a Physical Evaluation Board was conducted finding the applicant physically unfit for continued military service with a recommendation that he be permanently medically retired. The applicant concurred with the board's recommendation and waived his rights to a formal hearing. j. On 5 December 2014, the U.S. Army Physical Disability Agency issued Orders Number D 339-07 medically retiring the applicant for a physical disability incurred while entitled to basic pay and placing him on the retired list, effective 9 January 2015. These orders further reflect the following: * Disability Retirement – 3 years, 2 months, and 20 days * Basic pay – 12 years, 5 months, and 8days k. On 8 January 2015, the applicant was medically retired from the ARNG (Orders Number 012-079). NGB Form 22 reflects the following: * item 10a. (Net Service this Period) reflects 7 years and 28 days * item 10b. (Prior Reserve Component Service) reflects 5 years, 4 months, and 9 days * item 10c. (Prior Active Federal Service) reflects "0" * item 10d. (Total Service for Pay) reflects 12 years, 5 months, and 7 days * item 10e. (Total Service for Retired Pay) reflects 7 years 4. The applicant's pay records reflect 3 years, 2 months, and 20 days of total active service with a service percentage multiplier of 3 years, 3 months, and 13 days. 5. On 15 November 2023, Headquarters U.S. Army Physical Disability Agency, Legal Advisor provided an advisory opinion noting that the applicant's submitted relief request was legally insufficient. An assessment of the applicant's retirement points history reflects 1160 points which equates to 3 years 2 months 20 days for disability retirement. The creditable service time for retirement is correct in that the applicant's base pay includes the time listed on his NGB Form 22. The applicant's time as a cadet is not included in his service time calculation. His service time is correct based upon the documentation contained within his service records. Based upon the aforementioned, the applicant's submitted request is legally insufficient. 6. On 28 November 2023, the applicant was provided with a copy of the advisory opinion and afforded 15 days to provide comments. As of 14 December 2023, the applicant has 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 not 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 Headquarters U.S. Army Physical Disability Agency advisory opinion, the Board concurred with the advising official finding insufficient evidence of an error or injustice. The opine noted the applicant's retirement points history reflects 1160 points which equates to 3 years 2 months 20 days for disability retirement. The creditable service time for retirement is correct in that the applicant's base pay includes the time listed on his NGB Form 22. The Board agreed, based on regulatory guidance in Department of Defense – Financial Management Regulation Section 10207 the applicant’s time as a cadet is not authorized to be included in his service time calculation. Based on this, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. Department of Defense – Financial Management Regulation Section 10207 (Service Creditable for Disability Retirement) provides that a member of a Regular Component of the Armed Forces is credited with the greater of all service he or she is considered to have for the purpose of separation or mandatory elimination from the active list, or the sum of: * service while participating in exercises or performing active-duty training and drills in the National Guard * a member who is not a member of a Regular Component of the Armed Forces is credited with service calculated based on the above divided by 360: * all days of active service * all days of full-time service while performing annual training duty * one day for each point but not more than 130 days in the year of service that includes 30 October 2007 and in any subsequent year of service credited for the attendance at drills //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003332 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1