IN THE CASE OF:	  

		BOARD DATE:	  18 June 2009

		DOCKET NUMBER:  AR20090002385 


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, the issuance of a Notification of Eligibility for Nonregular Retirement (20-year letter), transfer to the Retired Reserve, and entitlement to retired pay at age 60.

2.  The applicant states his injustice occurred in 1991 when he was forced out of the Army National Guard due to expiration term of service (ETS).  He adds that he was prohibited from reenlisting in order to complete 20 years of qualifying service despite the fact that there was no bar to reenlistment imposed against him and that he had over 18 qualifying years for nonregular retirement.  

3.  The applicant provides a copy of his DA Form 2-1 (Personnel Qualification Record); a copy of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 28 October 1991; and a copy of his NGB Form 23 (Army National Guard Current Annual Statement), dated 8 October 1991, in support of his application. 

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 records show he was born on 17 February 1945 and enlisted in the Regular Army on 30 September 1963.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13E (Field Artillery Fire Direction Specialist).  He was honorably separated in the rank/grade of sergeant (SGT)/E-5 on 14 July 1996 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

3.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed 2 years, 9 months, and 15 days of creditable active military service.

4.  The applicant's DA Form 2-1shows that he remained in the USAR from         15 July 1966 until he completed his military service obligation and was discharged on 29 September 1969.  

5.  The applicant’s DA Form 2-1 also shows that, after a break in service, he enlisted in the Minnesota Army National Guard (MNARNG) on 6 April 1974, held MOS 62E (Heavy Construction Equipment Operator), and was discharged on 28 October 1981.  Copies of his enlistment contract and separation orders are not available for review with this case.

6.  On 29 October 1981, the applicant enlisted in the Arizona Army National Guard (AZARNG) for an unspecified period of time.  A copy of his enlistment contract is not available for review with this case.  He also executed a series of extensions in the AZARNG, held MOS 43M (Fabric Repair Specialist), and was honorably discharged in the rank/grade of SGT/E-5 on 28 October 1991 by reason of ETS.  

7.  The NGB 22 he was issued shows he completed 10 years of service during this period and he completed 9 years, 8 months, and 10 days of prior Reserve Component service.  He had also completed 2 years, 9 months, and 15 days of prior active federal service.

8.  The applicant’s ARNG Annual Statement, dated 8 October 1991, shows he was credited with completing 18 years, 4 months, and 9 days of creditable service for nonregular retirement.  This statement also shows a break-down of his total career points by retirement year end (RYE).  

9.  An advisory opinion was obtained on 25 March 2009 in the processing of this case.  The Chief, NGB Personnel Division recommended approval of the applicant’s request to be allowed to receive a military retirement, a 20-year letter authorizing him to collect retirement pay at the age of 60, and restoration of all retirement back pay from the age of 60.  The Chief also stated that the applicant completed 18 years, 4 months, and 9 days of service (Sanctuary) and was not given an opportunity to reenlist in order to serve his 20 years.  According to National Guard Regulation (NGR) 600-200, paragraph 8-2(E)(1) a Soldier having completed 18 but less than 20 years of qualifying service for retired pay will not be involuntarily separated without the approval of the Secretary of the Army or his designated representative (Title 10, U.S. Code, section 1176(b) or 12686).  All recommendations for involuntary separation of Soldiers in this category will be sent to the National Guard Bureau for consideration.

10.  Although the Chief, NGB Personnel Division recommended that the applicant be issued a 20-year letter authorizing him to collect retirement pay at the age of 60, the letter will not be issued because the applicant reached age 60 on 17 February 2005.  Therefore, there will be no further discussion of this issue in this Record of Proceedings.

11.  The applicant was furnished a copy of this advisory opinion on 30 March 2009.  He concurred on 2 April 2009. 

12.  Army Regulation 135-178 (Enlisted Administrative Separations) prescribes policies and procedures for the separation of USAR enlisted Soldiers.  Chapter 11 of this regulation specifies that upon expiration of the Soldier's term of enlistment, reenlistment, or period of statutorily obligated service, the Soldier will be discharged by the separation authority.

13.  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. 

14.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a indicates that to be eligible for retired pay an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and (3) served the last 8 years of his or her qualifying service as a Reserve Component (RC) Soldier.  The requirement to serve the last 8 years in an RC was later amended to the last 6 years, and on 26 April 2005 this requirement was reduced to zero (0) years.  This regulation also specifies, in part, that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.

15.  Title 10, USC, section 1176 pertains to retention of enlisted members after completion of 18 years but less than 20 years of service.  It states, in pertinent part, that a Reserve enlisted member serving in an active status who is selected to be involuntarily separated (other than for physical disability or for cause), or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause), and who on the date on which the member is to be discharged or transferred from an active status is entitled to be credited with at least 18 but less than 20 years of service computed under section 12732 of this title, may not be discharged, denied reenlistment, or transferred from an active status without the member's consent before the earlier of the following:

	a.  If as of the date on which the member is to be discharged or transferred from an active status the member has at least 18, but less than 19, years of service computed under section 12732 of this title, (a) the date on which the member is entitled to be credited with 20 years of service computed under section 12732 of this title; or (b) the third anniversary of the date on which the member would otherwise be discharged or transferred from an active status.

	b.  If as of the date on which the member is to be discharged or transferred from an active status the member has at least 19, but less than 20, years of service computed under section 12732 of this title, (a) the date on which the member is entitled to be credited with 20 years of service computed under section 12732 of this title; or (b) the second anniversary of the date on which the member would otherwise be discharged or transferred from an active status.

16.  In 1993, Public Law 103-160 amended section 1176 by adding subsection (b) and struck out heading and text of former subsection (b) which provided that a Reserve enlisted member serving on active duty who was selected to be involuntarily separated, or whose term of enlistment expired and who was denied reenlistment, and who on the date on which the member was to be discharged or released from active duty was entitled to be credited with 18 but less than 20 years of service computed under section 1332 of Title 10 could not be discharged or released from active duty without the member's consent before the earlier of certain dates.  Furthermore, Section 562(b) of Public Law 103-160 provided that "Subsection (b) of section 1176 of Title 10, U.S. Code, shall take effect as of 23 October 1992." 


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be transferred to the Retired Reserve and authorized retired pay at age 60.

2.  The evidence of record shows the applicant was discharged on 28 October 1991 by reason of ETS.  At the time of discharge, he had completed 18 years, 4 months, and 9 days of service for nonregular retirement.  It is unclear why he did not reenlist and/or extend his existing reenlistment to complete 20 years for nonregular retirement.  It appears that if he had been given the opportunity to reenlist and complete the required 20 years of service for nonregular retirement, he would have done so.  The reason why he was not given the opportunity to reenlist is not available at this late date.

3.  The law that required a member who has completed 18 but less than 20 years of qualifying service for retired pay not be separated without the approval of the Secretary of the Army or his designated representative took effect on 23 October 1992.  Notwithstanding the advisory opinion provided by the National Guard Bureau, the applicant was discharged on 28 October 1991, and therefore the specific section of this law does not apply to him.  At the time of his discharge, there was no requirement to obtain his consent or obtain an approval from the Secretary of the Army prior to his discharge.

4.  Regrettably, the applicant does not qualify for the issuance of a Notification of Eligibility for Nonregular Retirement (20-year letter) and/or transfer to the Retired Reserve and/or entitlement to retired pay 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.

ABCMR Record of Proceedings (cont)                                         AR20090002385



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ABCMR Record of Proceedings (cont)                                         AR20090002385



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