BOARD DATE: 21 July 2009
DOCKET NUMBER: AR20090002293
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 that the effective date of his discharge from the U.S. Army Reserve (USAR) be corrected to show 5 April 2008 instead of 31 January 2008 on his discharge orders.
2. The applicant states, in effect, that he needs his discharge orders corrected to show 5 April 2008 as the effective date instead of 31 January 2008 so he can retire with benefits and receive an identification card. He contends that he was coerced into signing a statement and was unable to extend his enlistment.
3. The applicant provides USAR discharge orders, dated 22 January 2008; a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 3 April 2008; two DA Forms 4856 (Developmental Counseling Form); and a reenlistment contract in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 4 May 1963. He enlisted in the Army National Guard on 20 May 1980 and subsequently served in the USAR until 28 September 1997. After a break in service, the applicant enlisted in the USAR on 15 March 1999.
2. A DA Form 4856, dated 11 January 2008, shows the applicant was counseled on his decision to separate from the USAR troop program unit for the following reason: "Solder was NOT eligible to reenlist. Soldier failed to extend in time before his expiration term of service (ETS) date. Soldier is past his ETS and is now being discharged from the unit." The applicant agreed with this information on 16 January 2008.
3. Headquarters, 88th Regional Readiness Command, Orders 08-022-00113, dated 22 January 2008, show the applicant was honorably discharged from the USAR.
4. The applicants Notification of Eligibility for Retired Pay at Age 60 is dated 3 April 2008.
5. The applicant's ARPC Form 249-E (Chronological Statement of Retirement Points), dated 22 December 2008, shows he completed 20 years, 2 months, and 26 days of qualifying service for retired pay.
6. Title 10, U.S. Code, section 12738(a), states that after a person is notified that he or she has completed the years of service required for eligibility for retired pay, the persons eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service unless it resulted directly from the fraud or misrepresentation of the person.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he needs his discharge orders corrected to extend his discharge date to 5 April 2008 so he can retire with benefits was noted.
2. The applicant's ARPC Form 249-E shows he completed 20 years, 2 months, and 26 days of qualifying service for retired pay.
3. The applicant received a Notification of Eligibility for Retired Pay at Age 60, dated 3 April 2008. By law, once a member has received notification of eligibility for retired pay, that eligibility may not be denied or revoked.
4. As such, there is no basis for the applicant's request to extend his discharge date to grant him eligibility for retired pay and benefits at age 60.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___x____ __x_____ ___x____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
__________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.
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