IN THE CASE OF:	  

		BOARD DATE:	  	  19 March 2009

		DOCKET NUMBER:  AR20080008632 


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, reimbursement for lost membership points and cost of living pay increases from 1995 until the present.

2.  The applicant states, in effect, that he was discharged from the U.S. Army Reserve (USAR) Control Group (Reinforcement) without being transferred to the Retired Reserve in 1995.  He also states that he lost membership points and cost of living pay increase from 1995 until the present.  He states that his NGB
Form 22 (National Guard Bureau - Report of Separation and Record of Service states, at the bottom, "Completed 20 years Service" and the USAR Control Group (Retired). 

3.  The applicant provides a copy of his State of West Virginia, Army National Guard (WVARNG) discharge orders (Orders 160-43), dated 1 September 1992; NGB Form 22 with an effective date of 27 August 1992, USAR Personnel Center, St. Louis, MO, Orders D-06-549862, dated 15 June 1995, a copy of a State of West Virginia, Office of The Adjutant General memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60, dated 25 March 1992; U.S. Army Human Resources Command (USAHRC), St. Louis, Orders P03-802797, dated 3 March 2008 (retirement orders); and an NGB Form 23B (Army National Guard Retirement Points History Statement) in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he was born on 16 April 1948.  He initially enlisted in the Regular Army and entered active duty on 15 November 1967.  He served on active duty for 2 years, 11 months, and 20 day until being honorably released from active duty and transferred to the USAR on 4 November 1970.

2.  The applicant's record shows he served in the USAR from 5 November 1970 through 14 November 1973, at which time he had a break in service then 6 May 1976.   On 7 May 1976, he enlisted in the ARNG and continuously served in that status until 1992.  

3  The applicant's record contains a Notification of Eligibility for Retired Pay at Age 60 memorandum, dated 25 March 1992, issued by the State of West Virginia, Office of The Adjutant General, which notified the applicant that he had completed the required years of service to be eligible for retired pay at age 60.

4.  On 27 August 1992, the applicant was honorably discharged from the WVARNG and transferred to the USAR.  Item 9 (Command to Which Transferred) of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was transferred to the Individual Ready Reserve (IRR).  Item 23 (Authority and Reason) shows he was transferred to the USAR Control Group (Retired).  On 15 June 1995, the applicant was honorably discharged from the USAR.

5.  The applicant's adjusted Army National Guard Retirement Points History Statement Application for Retirement Pay shows that he earned 2,593 cumulative retirement points and a total of 20 years, 11 months, and 20 days of creditable service for retired pay.

6.  On 3 March 2008, the applicant's application for retired pay under Title 10, U.S. Code, section 12731, was approved.  The applicant was placed on the retired list in the retired grade of sergeant (SGT)/E-5, effective 16 April 2008.

7.  In the processing of this case, an advisory opinion was obtained from the 
USAHRC-St. Louis, Annuity and Retirements, Retired Pay Branch.  A review of the applicant's military record show he was transferred to the IRR on 27 August 1992.  He was discharged from the IRR on 15 June 1995.  When the applicant was certified for retired pay on 3 March 2008, he was given membership points for the period 28 August 1992 – 15 June 1995.  The applicant was entitled to retired pay at the rate that was in effect at the time of placement on the AUS retired list, 16 April 2008.  The applicant's longevity was calculated as 27 years, 
1 month and 10 days.  The Value of a Point Table that was enclosed with the advisory opinion shows that he would have received the same point value regardless of years of service over 20 years.  The advisory opinion stated, that it would not have made any difference in pay if he had been transferred to the Retired Reserve instead of the IRR from the WVARNG.  Thus, it does not appear that any correction is necessary.

8.  On 5 January 2009, the applicant was sent a copy of the HRC-St. Louis advisory opinion, with enclosures, for information and to allow him the opportunity to submit a rebuttal to the advisory opinion.  This correspondence was mailed to the same address as indicated on his DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, section 1552.  To date he has failed to respond.

9.  Information obtained from the USAHRC - STL Soldier Management System (SMS) indicates that the WVARNG informed USAHRC - STL on 9 April 2008 that the applicant should have been transferred to the Retired Reserve.

10.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policy and procedures for assigning, attaching, removing, and transferring U.S. Army Reserve Soldiers.  Chapter 6 (Transfer to and from the Retired Reserve), paragraph 6-1 (Eligibility), lists the conditions for Soldiers authorized assignment to the Retired Reserve and, in pertinent part, identifies Soldiers entitled to receive retired pay from the U.S. Armed Forces because of prior military service and Soldiers who have completed a total of 20 years of active or inactive service in the U.S. Armed Forces.  This paragraph also states that eligible Soldiers must request transfer to the Retired Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he was discharged without being transferred to the Retired Reserve and that he lost membership points and cost of living pay increases from 1995 until the present were carefully considered and found to have merit.

2.  The evidence of record shows that, after having had prior service, the applicant enlisted in the ARNG on 7 May 1976 and continuously served in that status until 1992.

3.  The evidence of record also shows that the applicant earned 2,593 total points for retired pay and a total of 20 years, 11 months, and 20 days of creditable service for retired pay.  

4.  The applicant's NGB Form 22 shows in one section that he was transferred to the IRR on 27 August 1992.  Another section on the same form shows that he was transferred to the Retired Reserve.

5.  Based upon the entry that the applicant was transferred to the IRR, he was discharged from the USAR on 15 June 1995.  

6.  Entries in SMS verify that the WVARNG acknowledges the applicant was erroneously transferred to the IRR and should have been transferred to the Retired Reserve on 27 August 1992.  

7.  Therefore, as a matter of equity in this case, the applicant's erroneous transfer to the IRR should be voided and his 1995 discharge from the USAR should be voided.  

8.  The applicant turned age 60 in April 2008.  He became eligible to draw retired pay at that time.  If any cost of living pay increases are due, they would be due only from April 2008 and not from 1995.  It is noted that, in accordance with the advisory opinion, an adjustment to his retired pay may not be due.

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 the State Army National Guard and Department of the Army records of the individual concerned be corrected by:

     a.  voiding his 27 August 1992 transfer to the IRR;

     b.  voiding his 15 June 1995 discharge from the USAR;

     c.  showing he was transferred to the Retired Reserve on 27 August 1992; and 

     d.  after the above corrections are made, auditing his records to determine if an adjustment to his retirement points/retired pay needs to be made and, if so, paying him any retired pay due as a result of these corrections.
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 reimbursement for cost of living pay increases from 1995 until the present.




      __________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)                                         AR20080008632



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ABCMR Record of Proceedings (cont)                                         AR20080008632



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