IN THE CASE OF:	  

		BOARD DATE:	        12 August 2008

		DOCKET NUMBER:  AR20080007987 


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 requests, in effect, that she be transferred from the U.S. Army Reserve (USAR) Control Group (Reinforcement) to the Retired Reserve.

2.  The applicant states, in effect, that she was not properly counseled about her discharge from the Army National Guard (ARNG) because she was on active duty and did not return to her state unit prior to her discharge.  She contends that she was supposed to be placed in the Individual Ready Reserve (IRR) until July 2008 and then placed on the Retired List.  However, she was discharged by mistake. 

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of her National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show she was born on 22 June 1966 and enlisted in the Regular Army on 11 March 1985.  She was honorably separated on 17 July 1987.

2.  The applicant's records further show that she enlisted in the USAR on
12 February 1990, and served in a Troop Program Unit.  On 3 July 1992, she became an ARNG unit member.  From 8 July 1995 until her discharge, she was in the Active Guard Reserve (AGR) Program on active duty. 
3.  On 12 April 2006, the applicant was notified that she was eligible for retired pay at age 60. 

4.  On 29 September 2006, the applicant requested voluntary release from the AGR Program and placement in the IRR, effective 2 February 2007.

5.  Orders 270-1009, Commonwealth of Pennsylvania, Department of Military and Veterans Affairs, dated 27 September 2007, discharged the applicant from the ARNG and assigned her to the USAR Control Group (Reinforcement), effective 31 January 2007.  Her NGB Form 22 states that she was not to be discharged from the Reserve of the Army status in order to become a member of the Army Reserve, IRR.

6.  The applicant's Chronological Statement of Retirement Points, dated
1 October 2007, shows that she completed 20 years, 10 months, and 19 days of qualifying service for retired pay as of her retirement year ending 31 January 2007. 

7.  In processing this case, an advisory opinion was obtained from the Chief, Personnel Division, NGB recommending that the applicant's discharge and placement in the IRR be rescinded.  Although the applicant requested to go into the IRR, it was the command's responsibility to verify her eligibility to be placed into the Retired Reserve and to counsel the applicant accordingly.  

8.  In accordance with National Guard Regulation (NGR) 600-200, chapter 8, paragraph 8-39b-d, retirement is voluntary.  Soldiers who are separated for any reason and have 20 or more qualifying years of service towards a nonregular retirement will not be discharged unless they apply in writing.  Soldiers in this category will be transferred to the USAR Control Group (Retired) unless the Soldier elects discharge.  Separation authorities will not approve requests for separation, except those for maximum age or years of service, until they verify (1) the Soldier has completed all remaining service obligations such as those for training, promotion, appointment, and time on station after a permanent change of station for AGR Soldiers and/or (2) the Soldier's eligibility with NGB Form 23B per NGR 680-2.  Soldiers who are not eligible for transfer to the Retired Reserve or placement on the Retired List because of their ineligibility will be informed.  If they still request separation, counsel them in writing of their potential loss of future retirement eligibility, the related benefits, and that they may be ineligible for later reentry into active status to gain eligibility.  Counsel in writing those who are 



eligible for retirement but request concurrent discharge of the potential loss of benefits and that to be retired and receive retired pay the individual must apply in writing to the Army for retired pay – it is not automatic.  File the written counseling statement with the Soldier's request for separation and related documents permanently in both the Military Personnel Records Jacket and state historical files.  If the Soldier refuses to sign the statement, include a statement from the counseling official fully explaining the situation.  Soldiers with Notification of Eligibility for Retired Pay at Age 60 (20 year letters) who are being separated will be transferred to the Retired Reserve unless they specifically request in writing on DA Form 4187 (Personnel Action) to be discharged from both State and Reserve of the Army status.  The Soldier must be counseled in writing of the effects on benefits of electing not to go into the Retired Reserve.

9.  On 26 June 2008, the applicant was provided a copy of the advisory opinion for comment and/or rebuttal.  On 26 June 2008, the applicant concurred with the advisory opinion.

10.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve. 

11.  Chapter 6 of Army Regulation 140-10 stipulates, in relevant part, that eligible Soldiers must request assignment to the Retired Reserve if they have completed a total of 20 years of active or inactive service in the U.S. Armed Forces.  The Soldier completes a DA Form 4651 (Request for Reserve Component Assignment or Attachment) requesting transfer to the Retired Reserve or discharge.

12.  Sections 12731 through 12740 of Title 10, U.S. Code, authorize retired pay for Reserve component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  The term "good years" is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement at age 60.






DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was qualified for transfer to the Retired Reserve in view of her completion of over 20 qualifying years of service for nonregular retirement.  She was issued a 20 year letter on 12 April 2006.  Although she voluntarily requested discharge from the ARNG and transfer to the IRR, she made this request while in AGR status, and there is no evidence showing that she was adequately counseled in regards to her options and/or future retirement benefits.  As noted in the advisory opinion, Soldiers who are separated for any reason and who have 20 or more qualifying years of service towards a nonregular retirement, will not be discharged without written evidence that the Soldier has been formally counseled on the ramifications of a request for discharge.  There is no evidence showing she was formally counseled.

2.  Notwithstanding the applicant's original request for discharge and placement in the IRR, it appears that she was not fully informed of the outcome of her decision.  The NG Bureau recommends approval of her request based on the command's failure to adequately counsel the applicant on her benefits.

3.  The applicant meets eligibility requirements for assignment to the Retired Reserve.  Notwithstanding the propriety of the applicant's discharge from the USAR, she will not be eligible for retired pay for another 16 years.  It would be in the Government's interest to transfer her to the Retired Reserve where she could be a mobilization asset for a reasonable length of time to come.  

4.  Given the above, the applicant's record should be corrected as shown below.

BOARD VOTE:

__xxx___  __xxx___  __xxx___  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 by: 

		a.  revoking PAARNG Orders 270-1009, dated 27 September 2007, discharging the applicant from the ARNG and assigning her to the USAR Control Group (Reinforcement); and

		b.  publishing orders discharging the applicant from the ARNG and assigning her to the Retired Reserve effective 31 January 2007.



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      _______ _   _______   ___
       	   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)                                         AR20080007987



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ABCMR Record of Proceedings (cont)                                         AR20080007987



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