RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 May 2007
	DOCKET NUMBER:  AR20060009723 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Mr. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Michael J. Flynn

Member

Ms. Rose M. Lys

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, credit for retirement points from August 2003 through March 2006.

2.  The applicant states, in effect, he was erroneously told that his expiration term of service (ETS) of 15 June 2006 was invalid, that his ETS was actually 11 July 2003, and therefore, he was no longer eligible to attend inactive duty training (IDT) with his unit.  As a result, he stopped drilling with his unit and was subsequently erroneously discharged from the U.S. Army Reserve (USAR).  He also states, in effect, he had 17 years, 11 months, and 13 days of qualifying service when he was told that he had to separate from the USAR based on his ETS.  He further states, in effect, if he is granted retirement point credit from the time he was erroneously discharged, he will have 20 qualifying years of service and be eligible for retired pay at age 60.

3.  The applicant provides copies of Headquarters, U.S. Army Reserve Command (USARC), Army Reserve G-1, Fort McPherson, Georgia, letter, dated 13 February 2006; DD Form 4-Series (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 16 June 2003; DA Form 3540 (Certificate and Acknowledgment of U.S. Army Reserve Service Requirements and Methods of Fulfillment), pages 2 & 6, dated 16 June 2003; Headquarters, USARC, Fort McPherson, Georgia, Orders 04-084-00082, dated 24 March 2004; and Headquarters, USARC, Fort McPherson, Georgia, Orders 06-031-00006, dated 31 January 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he enlisted in the USAR for a period of 6 years on 15 April 1983.  On 2 October 1984, the applicant enlisted in the Regular Army (RA) and entered active duty for a period of 4 years.  The applicant was awarded military occupational specialty (MOS) 51B (Carpentry and Masonry Specialist), promoted to the rank of specialist/pay grade E-4 on 1 July 1986, reenlisted on 19 August 1988, and continued to serve on active duty in the RA.  The applicant was discharged from active duty on 17 October 1991 after completing 7 years and 16 days net active service.

2.  The applicant's military service records contain a DD Form 4 that shows he enlisted in the USAR Troop Program Unit (TPU) for a period of 6 years on
18 October 1991.  He was initially assigned to the 872nd Maintenance Company (Forward Direct Support), Washington, Iowa, and subsequently assigned to Company A, 389th Engineer Battalion (Combat Heavy), Iowa City, Iowa.
3.  The applicant's military service records contain a DD Form 4 that shows he reenlisted in the USAR TPU on 12 July 1997 for a period of 6 years, which established his ETS as 11 July 2003.

4.  The applicant's military service records contain a DD Form 4 that shows he reenlisted in the USAR TPU on 16 June 2003 for a period of 3 years, which established his ETS as 15 June 2006.

5.  A review of the applicant's records in the USARC FoxPro Database shows that a suspension of favorable personnel actions (Flag) transaction was initiated on 9 March 2003 with a projected removal of April 2003.  This database shows that the Flag transaction was administratively removed on 20 August 2003.

6.  Headquarters, USARC, Fort McPherson, Georgia memorandum, dated
23 March 2004, subject: Personnel Strength Accountability via the Total Army Personnel Database - Reserve (TAPDB-R), shows that the Chief, Army Reserve, directed the USARC G-1 to improve the quality of strength accountability and provide a more accurate readiness posture.  This document also shows, in pertinent part, that the USARC G-1 identified Soldiers, according to the
TAPDB-R and Army finance system, with expired ETS dates and who had not received pay for at least 6 months.  This document further shows that the USARC G-1 would issue appropriate reassignment, transfer, or discharge orders for applicable Soldiers.

7.  A review of the U.S. Army Human Resources Command (USA HRC),
TAPDB-R, shows that the applicant's term of service expired on 11 July 2003, which represents the date of his ETS based on his 6-year reenlistment in the USAR on 12 July 1997.  In addition, the USA HRC, TAPDB-R, Retirement Points Summary, shows an ending date of 24 March 2004, the date the applicant was administratively discharged.

8.  In support of his application, the applicant provides a copy of Headquarters, USARC, Army Reserve G-1, Fort McPherson, Georgia, letter, dated 13 February 2006.  This document shows that the Army Reserve G-1 advised the Honorable James A. L____, Representative in Congress, that the applicant reenlisted in the USAR for a period of 3 years on 16 June 2003, but was erroneously discharged on 24 March 2004 because his new ETS of 15 June 2006 was not properly updated in the TAPDB-R.  This document also states that an official at the USARC, Army Reserve G-1 office contacted the applicant to advise him of the error and that his discharge order would be revoked.  This document further shows that, at that time, the applicant was advised he had 17 years, 11 months, and 13 days of creditable service for retired pay at age 60.  The applicant was also informed that he may request retirement point credit for the period subsequent to his erroneous discharge and advised he could make application to the Army Review Boards Agency, but that submission of an application does not imply that favorable action will be taken.

9.  The applicant also provides copies of his DD Form 4-Series and DA Form 3540, dated 16 June 2003, which show that he reenlisted in the USAR for a period of 3 years on that date.  In addition, he provides copies of Headquarters, USARC, Fort McPherson, Georgia, Orders 04-084-00082, dated 24 March 2004, and Orders 06-031-00006, dated 31 January 2006, which, in pertinent part, document his discharge from the USAR in the rank of sergeant/pay grade E-5, on 24 March 2004, and also the subsequent revocation of his erroneous discharge on 31 January 2006.

10.  In connection with the processing of this case, an advisory opinion was obtained from Headquarters, USA HRC, 89th Regional Support Team, St. Louis, Missouri.  The USA HRC advisory official states that the applicant was erroneously discharged on 24 March 2004 and the erroneous discharge order was revoked on 31 January 2006, but that the applicant was unable to drill to earn retirement points during that period.  The advisory official adds that the applicant has completed 17 years, 11 months, and 13 days of qualifying service for Reserve Retirement.  The USA HRC advisory official recommends the applicant be given qualifying service for the period 25 March 2004 through the present date (i.e., 31 July 2006).

11.  On 12 January 2007, the applicant was provided a copy of the USA HRC advisory opinion in order to have the opportunity to respond.  To date, the applicant has not provided a response.

12.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags) provides principles and standards for the Department of the Army to operate a system to guard against the accidental execution of specified favorable personnel actions for Soldiers not in good standing.  This Army regulation provides, in pertinent part, that a separate Flag will be initiated for each investigation, incident, or action and to remove the Flag when the Soldier is released without charges, charges are dropped, or punishment is completed.

13.  Army Regulation 600-8-2, paragraph 1-14 (Actions prohibited by a Flag) provides that a Flag properly imposed in accordance with this regulation prohibits specific personnel actions and includes, in pertinent part, reenlistment and extension.  Paragraph 1-16 (Retaining Soldiers past their ETS/ ESA/MRD) of this Army regulation provides that Soldiers will not be retained past their ETS/ESA/ MRD because they are flagged.  All actions must be executed prior to ETS/ESA/ MRD, or authority must be obtained from Headquarters, Department of the Army (HQDA) to extend the ETS/ESA/MRD.  This document also refers to Chapter 2, Section V, of the regulation for exceptions.

14.  Army Regulation 600-8-2, Chapter 2 (Operating Tasks), Section V (Task:  Request Authority To Retain Beyond Expiration Term of Service, Expiration of Service Agreement, or Mandatory Release Date), paragraph 2-10 (Steps for retaining beyond ETS/ESA/MRD), states, in pertinent part, that Soldiers who are flagged and the case cannot be completed prior to their separation may be retained in accordance with applicable regulations.

15.  Army Regulation 140-185 (Training and Retirement Points Credit and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized.  It also discusses the procedures for recording retirement point credits and training for USAR Soldiers.  Paragraph
2-1 (Criteria for crediting retirement points) states that the limitations on the number of points which may be credited to a Soldier during a retirement year are a maximum of 365 (366 during leap year) points, and a maximum of 90 points for inactive duty training and membership points; however, the Annual or Terminal Statement of Retirement Points will report all points earned. 

16.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve Component Soldiers.  Chapter 2 provides eligibility criteria and, in pertinent part, states that in order to qualify for non-regular retirement, a member must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 6 years of his or her qualifying service as a Reserve Component Soldier.  Paragraph 2-8 defines qualifying service and states, in pertinent part, that a Reserve Component Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected because he was erroneously told that his ETS of 15 June 2006 was invalid, that his ETS was actually 11 July 2003, that he was no longer eligible to attend IDT with his unit, and he was subsequently erroneously discharged from the USAR.  He also contends, in effect, that he should be credited with retirement points from August 2003 through March 2006; thereby showing he has 20 qualifying years of service and is eligible for retired pay at age 60.
2.  The evidence of record shows that the applicant's RYE date is 14 April, based upon his enlistment in the USAR on 15 April 1983.  The evidence of record also shows that the applicant has 17 years, 11 months, and 13 days of qualifying service for Reserve Retirement.

3.  The evidence of record shows that a Flag was initiated on the applicant on
9 March 2003 and that the Flag was removed from his record on 20 August 2003.  Therefore, based on the fact that the applicant's record was flagged for the suspension of favorable personnel actions, the applicant was ineligible to extend or reenlist during this period.

4.  The evidence of record also shows that Soldiers who are flagged and the case cannot be completed prior to their separation may be retained in accordance with applicable regulations.  However, there is no evidence of record showing that the applicant's USAR TPU took action to obtain approval from HQDA to retain the applicant past his ETS based on the fact that the actions pertaining to his case could not be completed prior to his separation.

5.  Notwithstanding the foregoing evidence, the evidence of record also shows that the applicant reenlisted in the USAR TPU on 16 June 2003 for a period of
3 years and that his new ETS was established as 15 June 2006.  In this regard, there is no evidence of record showing that the 3-year reenlistment contract the applicant executed on 16 June 2003, and that was witnessed by a commissioned officer of the U.S. Army Reserve, was subsequently invalided or voided by U.S. Army officials.  Moreover, the evidence of record indicates that the applicant's Flag was administratively removed on 20 August 2003, a date subsequent to the applicant's previous ETS date of 11 July 2003, which offers affirmation that the applicant's reenlistment was valid as he was still being managed in the USA HRC TAPDB-R as a USAR human resource asset, and thereby providing tacit acknowledgement that the applicant's ETS was actually 15 June 2006.

6.  Nonetheless, the evidence of record shows that the applicant was erroneously discharged on 24 March 2004 due to an administrative error in the TAPDB-R database.  However, the evidence of record further shows that the applicant's erroneous discharge was subsequently revoked (on 31 January 2006), which again offers affirmation that the applicant's 3-year reenlistment of 16 June 2003 was valid.

7.  The evidence of record offered in the USA HRC advisory opinion indicates that the applicant was unable to earn retirement points during the period
24 March 2004 through 31 January 2006 due to his erroneous discharge.  In addition, there is no evidence indicating that the applicant has been afforded the opportunity to earn retirement points subsequent to 31 January 2006, as the USA HRC, TABDB-R, continues (as of 19 April 2007) to incorrectly show the applicant's ETS as 11 July 2003.

8.  Therefore, based on administrative error on the part of Army officials and as a matter of equity, it is fair to assume the applicant would have earned the required retirement points during the period under review to complete 20 qualifying years of service for Reserve Retirement.  Therefore, the applicant is entitled to retirement point only credit during the period 25 March 2004 through 15 June 2006 (i.e., for RYE 14 April 2004, 14 April 2005, 14 April 2006 and 15 June 2006), including those retirement points he earned from 15 April 2003 through
24 March 2004.  This will allow the applicant to attain 20 qualifying years of service for retired pay at age 60.

9.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant's SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at: http://www.armyg1.army.mil/RSO/rso.asp


BOARD VOTE:

___RTD _  ___MJF_  ___RML _  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 as follows:

	a.  Credit the applicant's last three (3) USAR full retirement years, for retirement point only credit (i.e., RYE 14 April 2004, RYE 14 April 2005, and RYE 14 April 2006) and his final less than full retirement year, as follows:

									 Total Points Beginning		   Ending	  IDT	      Membership	  Creditable
__Date___		__Date___	Points		Points	     	(for Ret. Pay)

2003 04 15		2004 04 14	   35		   15			50
2004 04 15		2005 04 14	   35		   15			50
2005 04 15		2006 04 14	   35		   15			50
2006 04 15		2006 06 15	   11		     3			14

	b.  As a result of the above corrections, certify the applicant eligible for retired pay, in the rank of sergeant/pay grade E-5, upon the applicant attaining his 60th birthday, and

	c.  issue an honorable discharge by reason of expiration of term of service, effective 15 June 2006.




____Richard T. Dunbar_____
          CHAIRPERSON




INDEX

CASE ID
AR20060009723
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/05/03
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20040324
DISCHARGE AUTHORITY
AR
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
135.0200.0000
2.

3.

4.

5.

6.