IN THE CASE OF:	  

		BOARD DATE:	        29 JANUARY 2009

		DOCKET NUMBER:  AR20080006325 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant essentially requests that he be reinstated into the CAARNG retroactive to 7 August 2007 with an approved age waiver until 23 February 2010 in order for him to attain 20 years of qualifying service for non-regular retirement.

2.  The applicant essentially states that he was one of nine Soldiers who were inadvertently extended beyond their 60th birthdays without approved age waivers, and that when the automation personnel realized this error, he along with the other eight Soldiers, were immediately discharged.  He also states that he was discharged on 6 August 2007 at the age of 60 years, 8 months, and 23 days.  He further states that he was told by his command that an age waiver had been sought to extend him beyond his 60th birthday in order to achieve 20 creditable years for retirement purposes, but that the 15 July 2006 request for waiver got lost in channels.  He continued by essentially stating that the CAARNG has worked to reinstate and procure an approved age waiver for him ever since his situation was brought to its attention, and that he needs to be extended until he is 63 years, 3 months, and 10 days old in order to attain 20 creditable years for retirement purposes.  He also states that his request for age waiver was sent to the National Guard Bureau (NGB) on 18 January 2008 along with four other Soldiers' requests, and that his waiver was the only one of the five that was disapproved.  Additionally, he states that he should have been reinstated and his age waiver approved because one of the four Soldiers who was granted an age waiver had also been discharged but was reinstated and allowed to attain 20 qualifying years for retirement.  


3.  The applicant provides a memorandum, dated 9 April 2008, which authorized the CAARNG G-1 (a colonel) and a warrant officer of the CAARNG to submit his request to the Army Board for Correction of Military Records (ABCMR) in his stead; a memorandum, dated 7 April 2008, from the CAARNG G-1 to the Army Review Boards Agency who states that the applicant has been a good and faithful Soldier to his unit, the CAARNG, and the United States Army, and that it would be a shame to not allow him to continue his career and be able to attain 20 qualifying years of service for retirement purposes; orders, dated 6 August 2007, which discharged the applicant from the ARNG and as a Reserve of the Army effective 6 August 2007; his NGB Form 22E (Report of Separation and Record of Service) that was issued at the time of his discharge on 6 August 2007; a memorandum, dated 15 July 2006, from the applicant's commander at the time requesting a waiver for the applicant; an age waiver calculation worksheet; the applicant's ARNG Retirement Points History Statement, dated 31 March 2008; an extract of National Guard Regulation 600-200 (Enlisted Personnel Management and Fiscal Year Enlistment Criteria Memorandum); a memorandum, dated 3 November 2006, from the NGB regarding policy on enlisted service beyond age 60 waiver requests; a memorandum, dated 19 December 2007, from the Deputy Adjutant General of the CAARNG in which he endorsed the request for exception to policy for age waivers for the applicant and four other Soldiers; and a memorandum, dated 20 December 2007, from the CAARNG Adjutant General to the NGB, in which he requested age waivers for the applicant and four other Soldiers.

4.  The applicant also provides an electronic mail (e-mail) message, dated 23 January 2008, from an official from the NGB which essentially denied the applicant's request for age waiver; the applicant's DD Form 1966 (Record of Military Processing – Armed Forces of the United States) that was completed in conjunction with his enlistment in 2001; a memorandum, dated 24 January 2008, from the NGB to the CAARNG which approved an age waiver for another member of the CAARNG who had previously been discharged, along with his 6 August 2007 orders and NGB Form 22E from his previous discharge on 6 August 2007; a memorandum, dated 24 January 2008, from the NGB to the CAARNG which approved an age waiver for a different member of the CAARNG along with his 22 October 2007 orders and NGB Form 22E from his discharge on 30 July 2007; a memorandum, dated 21 September 2007, from the NGB to the CAARNG which approved an age waiver for another Soldier of the CAARNG along with his 22 March 2007 orders which discharged him on 15 March 2007; a memorandum, dated 24 January 2008, from the NGB to the CAARNG which approved an age waiver for yet another Soldier of the CAARNG along with his 6 August 2007 orders and NGB Form 22E which discharged him on 6 August 2007; another extract of National Guard Regulation 600-200, an e-mail message, dated 3 April 2008, which shows a list of drill dates the applicant attended after his discharge; two letters of recommendation, both dated 11 March 2008, from a major and a command sergeant major; an e-mail message string, with the last e-mail message dated 9 April 2008, between a warrant officer from the CAARNG and an official at the NGB; an e-mail message, dated 8 April 2008, from an official at the NGB to a warrant officer in the CAARNG; and the applicant's DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) from his enlistment on 21 September 2001 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show after having prior service in the Regular Army, United States Army Reserve, and the United States Marine Corps, he enlisted in the CAARNG on 21 September 2001.  Page 3 of his DD Form 1966 shows, in pertinent part, that he signed a statement which stated that he understood that in accordance with National Guard Regulation 600-200, paragraph 2-32c, he may not be able to qualify for retired pay for non-regular service before he reached age 60 and must be discharged.

2.  A memorandum, dated 15 July 2006, essentially shows that an age waiver was being requested for the applicant because he would not reach 20 years of qualifying service before age 60.  This memorandum also shows that the request for waiver was being requested in accordance with National Guard Regulation 600-200, Chapter 7, Table 7-2, Rule B.  It appears that this request for age waiver was lost and never processed.  It should be noted that at the time of this request, the CAARNG Adjutant General had the authority to approve a waiver for the applicant to allow him to remain in the CAARNG until he obtained 20 qualifying years of service for retirement purposes if he could qualify prior to reaching age 64.

3.  In a memorandum, dated 3 November 2006, the NGB issued a policy guidance which essentially stated that State Adjutants General could approve waivers for 2 years beyond age 60, but that extensions beyond age 62 must be forwarded to the NGB for approval.

4.  On 13 November 2006, the applicant turned age 60, but a waiver to allow him to remain in the CAARNG was not approved.  On 6 August 2007, the applicant was discharged from the CAARNG and as a Reserve of the Army at the age of 60 years, 8 months, and 24 days.


5.  Information obtained from the CAARNG indicates that they have allowed the applicant to continue to drill on a regular basis pending approval of his request for age waiver.

6.  In December 2007, requests for age waivers for the applicant and four other Soldiers were sent from the CAARNG to the NGB.  In an e-mail message, dated 23 January 2008, an official from the NGB essentially informed the CAARNG that the request for age waiver for the applicant was denied.  This e-mail message referenced the statement that the applicant signed at the time of his enlistment in which he understood that he may not be able to qualify for retired pay before he reached age 60.

7.  During the processing of this case, an advisory opinion was obtained from the NGB.  While the NGB had previously disapproved the request for waiver for the applicant, in its advisory opinion, they recommended approval of the applicant's request to reinstate him in the CAARNG with an effective date of 7 August 2007, and that an age waiver be approved until 23 February 2010.  This advisory opinion also stated that the NGB's rationale for denying the applicant's age waiver was due to the fact the applicant signed a statement on his DD Form 1966 which said that he understood that he may not be able to qualify for retired pay for non-regular service before he reached age 60 and must be discharged, and that his NGB Form 22 reflected that he was assigned a reentry eligibility (RE) code of 4.

8.  This advisory opinion also essentially stated that the applicant's enlistment contract in September 2001 was improperly executed because it erroneously reenlisted him beyond his 60th birthday without granting him an age waiver.  It also stated that the statement in his September 2001 enlistment contract regarding retired pay should not have been included and does not preclude the applicant from receiving an age waiver.  It further stated that if the inclusion of the statement on the applicant's DD Form 1966 was grounds for denying a waiver, then an age waiver would not exist because it could never be granted.  Additionally, it stated, in effect, that paragraph 7-10b of National Guard Regulation 600-200 in effect at the time of the applicant's enlistment in 2001 stated that "A Soldier not qualified for retirement under Title 10, United States Code, Chapter 1223, upon reaching age 60, as described in Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service), but who could qualify for retirement under the provisions of National Guard Regulation 680-2 (Automated Retirement Points Accounting System) prior to attaining age 64, may be extended for a period equal to the remaining period required for qualification for retired pay."


9.  Additionally, this advisory opinion stated that the applicant's RE code of 4 is irrelevant when considering an age waiver, and that he was issued an RE code of 4 because he was over the age of 60 when he was discharged.  However, the applicant was discharged from the military over age 60 because his 2001 enlistment was improperly executed and the initial age waiver request was lost through channels.  It also stated that paragraph 7-10c of National Guard Regulation 600-200 provides that "To ensure adequate time for processing, [a] waiver for extension past age 60 should be submitted when the Soldier reaches [age] 59," and that the initial age waiver that was never properly executed for the former ARNG Soldier was submitted on 15 July 2005, 4 months shy of his 60th birthday.

10.  Further, this advisory opinion stated that the applicant's entire chain of command, from his company commander to the CAARNG Adjutant General, supports his request to extend him past the age of 60 in order to earn a 20-year retirement.  It also stated that if the applicant's initial age waiver request had been properly executed, he would have been granted an age waiver up to 64 years of age by the CAARNG Adjutant General.  However, as of 3 November 2006, the CAARNG only has the authority to grant waivers up to the age of 62, and that all waivers beyond age 62 must be approved by the NGB.

11.  A copy of this advisory opinion was forwarded to the applicant for comment and/or rebuttal.  To date, he has not responded.

12.  Table 7-2 of National Guard Regulation 600-200 provides, in pertinent part, basic eligibility standards and waiver authority for National Guard enlisted personnel.  Rule B (Disqualification:  Lack of eligibility for non-regular retired pay) essentially provides that a Soldier not qualified for retirement per Army Regulation 135-180 upon reaching age 60, but could qualify prior to reaching age 64, can be granted an age waiver by his or her State Adjutant General.

13.  Paragraph 7-10 of this same regulation provides, in pertinent part, that Soldiers not qualified for non-regular retired pay at age 60 per Army Regulation 135-180, but who could qualify for retirement before age 64, may be extended to the end of the month in which they qualify for retired pay.  To ensure adequate time for processing, waiver requests for extension past age 60 should be submitted when the Soldier reaches age 59.






DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant’s command failed to submit a request for age waiver when he reached age 59 in November 2005, then failed to properly monitor the progress and status of the 15 July 2006 age waiver request. Had his command submitted an age waiver request for him in November 2005, not only would the CAARNG Adjutant General have been able to approve an age waiver for him beyond age 62, but there would have been adequate time to resubmit an age waiver request in the event the initial request was not properly executed.  Notwithstanding these facts, the former ARNG Soldier should not be punished for his command's shortcomings.

2.  In an effort to aid the applicant, his command has allowed him to continue to drill on a regular basis since his discharge.  Accordingly, the applicant is entitled to be paid for all drills attended. 

3.  The evidence of record also shows that the NGB, although originally denying the request for an age waiver beyond age 62 for the applicant, now fully supports this request for relief and it would be in the interest of justice to allow the applicant to complete his military career in order to become entitled to a non-regular retirement, provided that he can and does complete 20 qualifying years of service for a non-regular retirement before reaching age 64.  Notwithstanding the fact the applicant’s command did not have the authority to "unofficially reinstate" him, it would be appropriate at this time to correct the military records of the applicant as shown below.

BOARD VOTE:

___X_____  ___X_____  ___X_____  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 and National Guard records of the individual concerned be corrected by:

	a.  showing that an age waiver was approved for him through 23 February 2010, or any future date necessary for him prior to him reaching age 64, so that he may attain 20 qualifying years of service for non-regular retirement prior to reaching age 64; and

	b.  voiding his 6 August 2007 orders discharging him from the CAARNG and as a Reserve of the Army and showing he has had continual service with the CAARNG, with entitlement to all back pay and allowances for any drills attended from that date.




      ________XXX_______________
       	     CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20080006325



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080006325



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1