IN THE CASE OF:	  

		BOARD DATE:	  7 May 2009

		DOCKET NUMBER:  AR20080008081 


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 his record be corrected to show he was discharged from the Army National Guard (ARNG) and transferred to the Retired Reserve on 26 December 2005 vice 20 December 2005; that he be credited with 21 years of qualifying service for a non-regular Reserve retirement; and that he be issued a corrected DD Form 214 (Certificate of Release or Discharge from Active Duty) and AHRC Form 249-2-E (Chronological Statement of Retirement Points) that document 21 years of qualifying service for retirement.

2.  The applicant states, in effect, that he requested discharge from the ARNG and transfer to the Retired Reserve effective 26 December 2005 so that he would have 21 years of qualifying service upon his retirement.  However, the ARNG discharged him and transferred him to the Retired Reserve 6 days early on 20 December 2005, without his knowledge and with no justification, which was a petty action that deprived him of 1 week of service and translated into the loss of 1 qualifying year for retirement.  He further states that his 24 November 2005 DD Form 214 only shows his service through the date of his release from active duty (REFRAD), which does not include his last month of ARNG service.

3.  The applicant provides the following documents in support of his application:  Joint Forces Headquarters Orders 354-1019, dated 20 December 2005; Headquarters, United States Army Field Artillery Center and Fort Sill, Oklahoma, Orders 321-0736, dated 17 November 2005; DD Form 214; Request for Transfer Retired Reserve memorandum, dated 1 December 2005; and AHRC 
Form 249-2-E), dated 30 November 2006.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, 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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows he served on active duty in the Regular Army for 3 years from 27 December 1984 through 26 December 1987 and that he continuously served in an active status in the United States Army Reserve (USAR) and ARNG from 27 December 1987 through 20 December 2005 when he was discharged from the ARNG and transferred to the Retired Reserve.

3.  On 23 September 2004, while serving in the ARNG, the applicant was ordered to active duty in support of Operation Iraqi Freedom and served on active duty for 1 year, 2 months, and 13 days during this period.  On 23 November 2005, at the completion of his required active duty service, he was honorably released from active duty (REFRAD) and returned to his ARNG unit.

4.  On 27 December 2004, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20 year Letter) which informed him he had completed the necessary qualifying service to qualify to receive Reserve retired pay at age 60 and, on 1 December 2005, he requested to be discharged from the ARNG and transferred to the Retired Reserve effective 26 December 2005.  The facts and circumstances surrounding the processing of this request are not on file.

5.  Joint Forces Headquarters Orders Number 354-1019, dated 20 December 2005, directed the applicant's honorable discharge from the ARNG and transfer to the USAR Control Group (Retired Reserve) effective 20 December 2005.

6.  The NGB Form 22 (Report of Separation and Record of Service) issued to the applicant upon his discharge from the ARNG shows he completed a total of 20 years, 11 months, and 24 days of military service for pay and 20 years of qualifying service for retired pay.  Item 23 (Authority and Reason) contains an entry confirming the reason for his discharge was discharge and transfer to the Retired Reserve.
7.  The applicant's official military personnel file contains a copy of an ARPC Form 249-E (Chronological Statement of Retirement Points), dated 5 February 2009, which shows that between 27 December 1984 and 20 December 2005, the date of his transfer to the Retired Reserve, he completed a total of 20 years, 10 months, and 29 days of qualifying service for Reserve retirement purposes.

8.  In connection with the processing of this case, an advisory opinion was obtained from the Human Resources Division, U.S. Army Human Resources Command (HRC), St. Louis, Missouri.  This official stated that the ARPC Form 249-E correctly reflects the applicant's years of service as 20 years, 10 months, and 29 days, and that without official documentation his service cannot be extended for 6 days to show his completion of 21 years of service and change his retirement date to 26 December 2005.  He further stated the applicant's DD Form 214 is correct and the period 24 November through December 2005 is properly not reflected on his DD Form 214 because it was inactive time he completed after his REFRAD, which was 23 November 2005.

9.  On 8 February 2009, the applicant was provided a copy of the HRC-St. Louis Personnel Division advisory opinion in order to have the opportunity to reply to its contents.  To date, a response has not been received from the applicant.

10.  National Guard Regulation 600-200 (Enlisted Personnel Management), chapter 8, provides policy and procedures to discharge Soldiers from both the State ARNG and as a Reserve of the Army or from the State ARNG only.  Paragraph 8-16.2 states, in pertinent part, that Soldiers eligible for non-regular retired pay at age 60 may request in writing to be transferred to the Retired Reserve (prior to age 60) up to 18 months before the selected retirement date without regard to the currently scheduled expiration of term of service.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Paragraph 2 states, in pertinent part, that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  There are no regulatory provisions that allow for correction or modification of a DD Form 214 to add Reserve service completed subsequent to REFRAD.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his record be corrected to show he was discharged from the ARNG and transferred to the Retired Reserve on 26 December 2005 as he originally requested was carefully considered and found to have merit.

2.  By regulation, Soldiers eligible for non-regular retired pay at age 60 may request in writing to be transferred to the Retired Reserve (prior to age 60) up to 18 months prior to the selected retirement date without regard to the currently scheduled expiration of term of service.  The evidence of record shows the applicant submitted a request to be discharged from the ARNG and transferred to the Retired Reserve on 26 December 2005 in accordance with this regulatory guidance in good faith.  It further appears that prior to the publication of orders, he was never consulted or informed by his chain of command or ARNG personnel officials that the effective date of his discharge/transfer to the Retired Reserve was changed to 20 December 2005, 6 days earlier than he requested.

3.  The facts and circumstances surrounding the processing of the applicant's discharge/transfer to Retired Reserve request and/or outlining the reasons ARNG officials assigned a different date than requested by the applicant are not on file.  Absent logic for the assignment of the earlier date, it is likely the assignment of an earlier date was the result of an administrative error in the publication of the orders.  Therefore, it would be appropriate and serve the interest of justice and equity to correct the applicant's record to show he was discharged from the ARNG and transferred to the Retired Reserve on 
26 December 2005 as he requested.  It would further be appropriate to credit the applicant with the additional 6 days of service and to make all necessary corrections to his record and Chronological Statement of Retirement Points.

4.  The applicant's request for a correction of his DD Form 214 to include his last month of service in the ARNG was also carefully considered.  However, by regulation, the DD Form 214 is a summary of a Soldier's most recent period of active duty service.  There are no regulatory provisions that provide for correcting or modifying a DD Form 214 to include USAR/ARNG service completed subsequent to a member's REFRAD.  As a result, there is an insufficient evidentiary basis to support granting this portion of the requested relief.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was discharged from the Army National Guard and transferred to the Retired Reserve on 26 December 2005 vice 20 December 2005; issuing him a correction to his NGB Form 22 and orders that reflect this change; and issuing him an AHRC Form 249-2-E showing he completed 21 years of qualifying years of service for retirement purposes.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction of his DD Form 214 dated 23 November 2005 to show his inactive period of service.



      _________x________________
                 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)                                         AR20080008081



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ABCMR Record of Proceedings (cont)                                         AR20080008081



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