APPLICANT REQUESTS: That his retirement for 20 active years of service be corrected to a retirement for nonregular service under title 10, U.S. Code, section 1331 (now section 12731)
APPLICANT STATES: That he was never informed that he had a choice of which retirement to take, and he would receive more money for his nonregular service due to his prior inactive (reserve not on active duty) service.
EVIDENCE OF RECORD: The applicant's military records show:
He entered on Full Time Training Duty (the active duty equivalent for guardsmen ordered to full-time national guard duty under state issued and funded orders, versus federally issued and funded orders) on 24 May 1991 with 19 years and 8 days of prior active service and 13 years, 11 months and 22 days of prior inactive service.
On 16 July 1994, the day he turned 60 years old, he was honorably released from active duty and retired for years of service.
In the processing of this case several advisory opinions (COPIES ATTACHED) were obtained. One opinion from the Director of Military Personnel, Florida National Guard, stated that the applicant was not counseled on his retirement options and, if he had been properly counseled, would have chosen the nonregular service option since it would have provided him a greater annuity than the regular years of service retirement option.
One opinion from the Deputy Chief of Staff for Personnel (DCSPER) examines the costs of the Survivor Benefit Plan (SBP), an option for which the applicant had elected in 1981. The DCSPER stated that for a nonregular retirement, the applicant would have had to pay for the coverage prior to his retirement whereas he did not have to pay for the coverage under his regular retirement option until the date of his retirement. The DCSPER also calculated the applicants monthly retired pay under both retirement options and determined that he would currently be receiving $1,527.14 a month for a nonregular service retirement, versus the $1,469.74 a month that he is currently receiving, after deducting SBP payments. Those sums do not include the amount of back SBP payments that would have to be deducted from the applicants retired pay.
One opinion from the National Guard Bureau states that for the applicant to be eligible for a nonregular retirement he would have had to have been released from active duty prior to his attaining regular retirement eligibility in accordance with title 10, U.S. Code, section 12731. The NGB explains that a reservist or guardsman cannot be retired for nonregular service if he or she is eligible for regular retirement.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinions, it is concluded:
1. The applicant was not eligible to retire for nonregular service after he completed 20 active years of service. He achieved 20 active years of service in May 1992, over 2 years prior to his release from active duty.
2. In order to correct the applicants records to permit his retirement for nonregular service, his date of release from active duty would have to be corrected to May 1992 and the money he had been paid from that date collected from him. In addition, he would be required to make back SBP payments. Such an arrangement would not be advantageous to the applicant.
3. In view of the foregoing, there is no basis for granting the applicants request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Karl F. Schneider
Acting Director
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