IN THE CASE OF: 

		BOARD DATE: 13 December 2023

		DOCKET NUMBER: AR20230005128


APPLICANT REQUESTS:  

*	correction of service records to reflect 20 years of qualifying service resulting in 
eligibility for a reserve retirement at the rank/grade of sergeant (SGT)/E-5
*	a personal appearance before the Board 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Petition for Relief, 27 January 2023
*	Brief in Support of Application for Correction of Military Records
*	DA Form 4836 ((Oath of Extension of Enlistment or Reenlistment),  
6 February 1988
*	Noncommissioned Officer Evaluation Report (NCOER))
*	Medical documents
*	Orders Number 007-064, 7 January 1992
*	NJDOD Form 25 (Request for Discharge), 1 April 1992
*	Orders Number 107-023, 16 April 1992
*	National Guard Bureau (NGB) Form 22 (Report of Separation and Record of 
Service), 13 April 1992
*	Army National Guard (ARNG) Retirement Points History Statement, 
22 September 1992
*	Army Board for Correction of Military Records (ABMCR) Docket Number 
AR20050000380, 1 November 2005

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 represented by legal counsel provides that he was erroneously 
discharge on 13 April 1992, for failing to obtain a medical physical in accordance with 
National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management). The 
applicant contests that this regulation provides specific guidance pertaining to 
processing service members with at least 18 qualifying years, but less than 20 years of 
service. Further the applicant notes that prior to his separation he was injured in a car 
accident (12 October 1990) and was following the advice of medical providers to not 
attend Battle Training Assemblies (BTA) which unfortunately resulted in him being 
reduced in rank, released from the ARNG and transferred into the U.S. Army Reserve 
(USAR) Control Group.

   a.	Following the car accident on 12 October 1990, the applicant received medical 
treatment and rehabilitative care through June 1991. During this period of time, he 
relocated to a different address and notified his leadership of this. On  
15 November 1991, the applicant was sent a memorandum reflective of a physical 
scheduled on 8 December 1991. He later received orders (7 January 1992) indicating 
that he was reduced in rank from sergeant (SGT)/E-5 to specialist (SPC)/E-4, effective 
18 November 1991.

   b.	On 1 April 1992, the applicant's commander submitted a request for him to be 
discharged for failing to obtain a physical. He was later discharged on 13 April 1992 
after completing 19 years of military service, of which 8 were qualifying years towards 
retirement. On 12 December 1995, the applicant was honorably discharged from the 
USAR after completing his remaining service obligation. 

   c.	Legal counsel contests that the applicant's untimely separation is unjust and not 
in compliance with NGR 600-200. Counsel notes that the administrative process in 
place at that time provides that the ARNG must notify the service member in writing if 
they are pending discharge. This guidance also provides that the approval authority for 
service members with 18 but less than 20 years of service is the State Adjutant 
General. Counsel argues that the applicant's assigned unit failed to adhere to this 
guidance and denied the applicant his right to seek legal counsel. Counsel further 
argues that the applicant's records are void of previous misconduct and had legal 
counsel been afforded to the applicant, they would have easily understood why the 
applicant discontinued attendance at BTA and missed mandatory physical 
appointments.

   d.	The applicant submits ABCMR Docket Number AR20050000380 as a point of 
reference in that the service members records were amended to reflect 20 years of 
qualifying service towards retirement upon reaching age 60. This document is further 
provided in its entirety within the supporting documents for the Board's review. 

3.  A review of the applicant's available service records reflects the following: 

a.	On 21 March 1973, the applicant enlisted in the ARNG for 6 years.
   b.	On 11 August 1975, the applicant was advanced in rank to SPC/E-4.

   c.	On 1 April 1979, the applicant was promoted to the rank of SGT/E-5.

   d.	After extending his enlistment on 3 previous occasions, on 19 March 1982, the 
applicant extended his current enlistment by 3 years resulting in a 20 March 1985 
Expiration Term of Service (ETS) date.

   e.	On 9 February 1985, the applicant extended his current enlistment by 3 years 
resulting in a 20 March 1988 ETS date. 

   f.	On 6 February 1988, the applicant extended his current enlistment by 6 years 
resulting in a 20 March 1994 ETS date.

   g.	On 7 January 1992, the NJARNG issued Orders Number 007-064, reducing the 
applicant from SGT/E-5 to SPC/E-4, effective 16 November 1991 due to inefficiency in 
accordance with NGR 600-200, paragraph 5-44a. The applicant's SPC DOR was 
adjusted back to 11 August 1975.

   h.	On 1 April 1992, the applicant's commander submitted a request for discharge 
(NJDOD Form 25) because the applicant failed to obtain a physical in accordance with 
NGR 600-200, paragraph 8-27j.

   i.	On 16 April 1992, the NJARNG issued Orders Number 107-023 discharging the 
applicant from the ARNG and transferring him to the USAR Control Group 
(Reinforcement) in accordance with NGR 600-200, paragraph 8-27j., effective 
13 April 1992 at the rank of SPC/E-4. NGB Form 22 reflects the applicant completed 19 
years and 23 days of net service this period and 19 years and 23 days of total service 
for pay. He would remain in the USAR to serve out the remaining 1 year, 11 months, 
and 8 days of his service obligation. 

   j.	On 12 December 1995, the U.S. Army Reserve Personnel Center issued Orders 
Number D-12-505741 discharging the applicant from the USAR, effective 
12 December 1995 at the rank of SPC/E-4. 

4.  The applicant provides the following a: 

   a.	NCOERs, reflective of the applicant's performance at the rank of SGT as 
assessed by members of his immediate leadership from September 1981 – November 
1989. 

   b.	Medical documents reflective of medical care received by the applicant on  
12 October 1990 in association with the motor vehicle accident that he was involved in. 
The applicant received subsequent healthcare to address his injuries. These documents 
are provided in their entirety within the supporting documents for the Board's review. 

   c.	ARNG Retirement Points History Statement dated 22 September 1992, reflective 
of the applicant's qualifying service obtained between 21 March 1973 – 13 April 1992. 
During this period the applicant obtained 18 years of qualifying service.

   d.	ABCMR Docket Number AR20050000380 dated 1 November 2005 reflective of a 
referenced case wherein an applicant requested correction of his records to show 20 
years of qualifying service for retired pay at age 60. The Board determined that 
although, Soldiers are required to apply for retirement pay, the applicant was 
prohibited from doing so because his erroneous records did not reflect the required 
qualifying service time. Therefore, since this error was caused by no fault of the 
applicant, he was entitled to retroactive retirement pay commencing on his 60th 
birthday. This case is further provided in its entirety for the Board's review within the 
supporting documents. 

5.  On 25 September 2023, the NGB, Chief, Special Actions, provided an advisory 
opinion recommending approval of the applicant's request noting that had the proper 
administrative board procedures been followed, it most likely would have been 
determined why the applicant stopped attending drills and therefore would not have 
been involuntarily discharged. The applicant should be awarded 20 years of creditable 
service for retirement at the rank of SGT/E-5. In accordance with NGR 600-200, 
paragraph 6-2e, the Secretary of the Army (SECARMY) is the approval authority to 
order separation of Soldiers who are within two years of completing the service required 
to qualify for retired pay from the ARNG and Reserve of the Army. A Soldier having 
completed 18, but less than 20-years of qualifying service for retired pay will not be 
involuntarily separated without the approval of the SECARMY. All recommendations for 
involuntary separation of Soldiers in this category will be sent to the NGB for 
consideration. Upon coordination with the ARNG Retirement Services Branch and IAW 
Army Regulation (AR) 600-8-19 (Enlisted Promotions), paragraph 10-5 (Reduction for 
Inefficiency), provides that the applicant was reduced without the required reduction 
board or declination to reduction board. Due to documented change of address, he 
never received notification of the proposed reduction from his commander. 

6.  On 27 September 2023, the applicant was provided with a copy of the advisory 
opinion. As of 6 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 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 the 
National Guard Bureau (NGB), Chief, Special Actions advisory opinion, the Board 
concurred with the advising official finding the applicant should be awarded 20 years of 
creditable service for retirement at the rank of SGT/E-5.  The Board agreed there is 
sufficient evidence to correct the applicant’s service records to reflect 20 years of 
qualifying service resulting in eligibility for a reserve retirement at the rank/grade of 
sergeant (SGT)/E-5. 


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

xx	xx	xx	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION

?
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 to show the 
applicant is awarded 20 years of creditable service for retirement at the rank of 
SGT/E-5. 


	 
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.  NGR 600-200 (Enlisted Personnel Management) in effect at that time provides 
standards, policies, and procedures for the management of the ARNG and the Army 
National Guard of the United States (ARNGUS) enlisted Soldiers in the functional areas 
to include enlisted separations. Paragraph 6-2 (Authority) provides that the SECARMY 
is the approval authority to order the separation of Soldiers who are within 2 years of 
completing the service required to qualify for retired pay from the ARNG and Reserve of 
the Army. A traditional Soldier having completed 18 but fewer than 20 years of 
qualifying service for retired pay will not be involuntarily separated (other than for 
physical disability) without the approval of the Secretary of the Army or their designated 
representative (10 USC 1176(b) or 12686). All recommendations for involuntary 
separation of Soldiers in this category will be sent to ARNG-HRH-E for processing. 

3.  AR 600-8-19 (Enlisted Promotions and Reductions) in effect at that time provides 
policies and procedures governing promotion and reduction of Army enlisted personnel. 
Chapter 6 (Reductions in Grade) provides that a reduction board is required for Soldiers 
in grades SGT through SGM for reduction for misconduct (civil conviction) under
paragraph 6–4 (except under table 6–1 at end of chapter, and for inefficiency under 
paragraph 6–5). Board appearance, however, may be declined in writing, which will be 
considered as acceptance of the reduction board's action. Inefficiency is a 
demonstration of characteristics that shows that the person cannot perform duties and 
responsibilities of the grade and MOS. Inefficiency may also include any act or conduct 
that clearly shows that the Soldier lacks those abilities and qualities normally required 
and expected of an individual of that grade and experience. Paragraph 6-6 (Criteria for 
Reduction for Inefficiency) provides that the commander starting the reduction action 
will present documents showing the Soldier's inefficiency to the reduction authority. 
Documents should establish a pattern of inefficiency rather than identify a specific 
incident. Reduction for inefficiency will not be used for the following:

*	to reduce Soldiers for actions for which they have been acquitted because of 
court–martial proceedings
*	in place of Article 15 of the Uniform Code of Military Justice
*	to reduce a Soldier for a single act of misconduct

The commander reducing the Soldier will inform him or her in writing of the action 
contemplated and the reasons. The Soldier will acknowledge receipt of the 
memorandum by endorsement and may submit any pertinent matters in rebuttal.

4.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military 
records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in 
its discretion, hold a hearing or request additional evidence or opinions. Additionally, it 
states in paragraph 2-11 that applicant's do not have a right to a hearing before the 
ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice 
requires.

5.  Title 10, USC, section 1552 states, the Secretary concerned may pay, from 
applicable current appropriations, a claim for the loss of pay, allowances, compensation, 
emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if, 
as a result of correcting a record under this section, the amount is found to be due the 
claimant on account of his or another’s service in the Army.

6.  Title 10, USC, section 12731 states, except as provided in subsection (c), a person 
is entitled, upon application, to retired pay computed under section 12739 of this title, if 
the person—(1)has attained the eligibility age applicable under subsection (f) to that 
person; (2)has performed at least 20 years of service computed under section 12732 of 
this title. In the case of a person who completed the service requirements of paragraph 
(2) (20 years) before 25 April 2005, performed the last six 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 Fleet Reserve, or the Fleet Marine Corps 
Reserve, except that in the case of a person who completed the service requirements of 
paragraph (2) before 5 October 1994, the number of years of such qualifying service 
under this paragraph shall be eight.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230005128


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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