IN THE CASE OF:	  

		BOARD DATE:	  10 November 2009


		DOCKET NUMBER:  AR20090005307 


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 credit for 5 months of service, and 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 that due to an administrative oversight caused by postal services, his AHRC Form 4145 (Election of Options - Military Service Obligation) was not originally received by the U.S. Army Human Resources Command (USAHRC), St. Louis, MO.  Accordingly, he was transferred to an inactive status on 27 December 2006.  Once he found out he was transferred to an inactive status, he signed and dated a new DA Form 4145 on 8 February 2007 and mailed it to USAHRC-St. Louis.  However, he was not transferred back to an active status until 31 May 2007.  Meanwhile, he continued to drill throughout this 5-month period.  He adds that by the end of his retirement year ending (RYE) 31 May 2008, he noticed that USAHRC-St. Louis credited him for the 5 months of service; however, at some time between that date and 15 September 2008, his record was modified to withdraw this period of service.

3.  The applicant provides a copy of his DA Form 4145, dated 8 February 2007; copies of Orders C-05-715020 and C-12-641722, issued by USAHRC-St. Louis, on 31 May 2007 and 27 December 2006, respectively; a copy of his ARPC Form 249-2-E (Chronological Statement of Retirement Points), dated 23 March 2009; and a copy of his ARPC Form 249-E (Chronological Statement of Retirement Points), dated 25 March 2009, in support of his request.

4.  On 5 June 2009, the applicant submitted a statement in which he stated that he has recently been involuntarily discharged from the U.S. Army Reserve (USAR) due to not meeting medical qualifications for deployment.  He adds that prior to receiving deployment Orders he was erroneously told by an Army physician that he did not meet deployment orders.  He contacted USAHRC-St. Louis and he was told to submit a request for exemption from deployment in order to have his records reviewed.  While he signed a letter indicating that he could be discharged, it was his understanding that since he had completed over 18 years of service, he was locked in.  He now understands that he should have reported to the mobilization site.  If the Board chooses to award him the 5 months of service credit, he would have 19 years, 11 months, and 13 days of qualifying service toward nonregular retirement.  He adds that between 27 December 2006 and 31 May 2007, he was only credited with 41 retirement points, which is not a good year.  Since he continued performing drills during this period, he should be credited with an additional 21 retirement points for the 5-month period.  If credited, his total points for the retirement year would become 62 retirement points and thus a good year.  He concluded that with the credit, he would be only 18 days short of 20 qualifying years and appeals to this Board for understanding and assistance in helping him become a retired officer.

5.  On 18 August 2009, the applicant submitted another statement in which he stated that his AHRC Form 249-2-E shows he was discharged from the Army and that he was credited with 19 years, 6 months, and 27 days of qualifying service.  He also added that he discovered that USAHRC-St. Louis received his DA Forms 1379 (U.S. Army Reserve Components Unit Record of Reserve Training) for each drilling period.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 11 March 1966, he was appointed as a second lieutenant (2LT) in the USAR, and he executed an oath of office on 13 May 1988.

2.  The applicant's records also show he was appointed as a 2LT in the Texas Army National Guard (TXARNG) and he executed an oath of office on 15 July 1989.  He entered active duty for training on 3 January 1990 and completed the Armor Officer Basic Course.  He was promoted to first lieutenant on 24 May 1991 and to captain on 23 May 1995.  He was honorably separated from the ARNG on 1 September 2002 and he was transferred to the USAR Control Group (Reinforcement).

3.  On 5 April 2005, by memorandum, USAHRC-St. Louis notified the applicant that he was selected for promotion to major effective 10 February 2005.
4.  On 18 September 2006, USAHRC-St. Louis mailed the applicant a DA Form 4145.  He was notified that he must make an election with respect to his military service obligation (MSO) and he was instructed to make an election between a transfer to a Selected Reserve unit, remain a member of the USAR Control Group (Individual Ready Reserve (IRR)), submit an unqualified resignation by reason of having completed his MSO, or transfer to the Retired Reserve if otherwise qualified.

5.  There is no indication in the applicant's records that he made an MSO election or returned the completed DA Form 4145 to USAHRC-St. Louis.

6.  On 2 November 2006, having failed to respond to the MSO Election Statement, USAHRC-St. Louis sent the applicant a second notice requesting he indicate his MSO election.

7.  There is no indication in the applicant's records that he responded to the second notification. 

8.  On 27 December 2006, USAHRC-St. Louis published Orders C-12-641722 releasing the applicant from the USAR Control Group (Reinforcement) and reassigning him to the Standby Reserve (Inactive List) for failure to make his MSO election.

9.  On 8 February 2007, the applicant completed his MSO Election Statement and indicated that he desired to remain a member of the IRR.

10.  On 31 May 2007, USAHRC-St. Louis published Orders C-05-715020 releasing the applicant from the Standby Reserve (Inactive List) and reassigning him back to the USAR Control Group (Reinforcement) effective 31 May 2007.

11.  On 12 December 2007, the applicant was ordered to active duty for a period of 400 days in support of Operation Iraqi Freedom.  He was ordered to report to Fort Benning, GA, effective 20 January 2008.

12.  On 31 December 2007, the applicant submitted an application by memorandum for an IRR exemption from involuntary active duty citing his medical conditions.  He acknowledged that he understood that if his request was approved, he could be transferred to the Retired Reserve if otherwise qualified, discharged from the USAR, transferred to the Standby Reserve until such time as the reason for the exemption no longer exists, or granted a delay of exemption from entry on involuntary active duty.

13.  Throughout 2008, while his case was being processed by USAHRC-St. Louis, the applicant was granted a delay of exemption from entry on active duty and his report date to the mobilization station was amended on several occasions to show 23 March 2008, 27 April 2008, 13 July 2008, 17 August 2008, 21 September 2008, and 5 October 2008.

14.  On 15 September 2008, USAHRC-St. Louis disapproved the applicant's request for exemption from involuntary active duty.  He was ordered to report for active duty no later than 5 October 2008.

15.  On 2 October 2008, the applicant submitted an appeal of the decision that disapproved his request for an exemption from involuntary active duty by memorandum.  Accordingly, while his case was being considered, he was again granted a delay of exemption from entry on active duty and his report date to the mobilization station was amended on several occasions to show 14 December 2008, 18 January 2009, 22 February 2009, and 29 March 2009.

16.  On 9 March 2009, the commander, USAHRC-Alexandria, VA, disapproved the applicant's request for exemption from active duty and granted the applicant a discharge from the USAR.  Accordingly, on 27 March 2009 his mobilization orders were revoked.

From
To
Status
Qualifying For Retirement
Total Points
20080601
20090513
USAR
0000   11   13
65
20070601
20080531
USAR
0001   00   00
69
20061227
20070531
INACTIVE
0000   00   00
00
20060513
20061226
USAR
0000   07   14
41
20050513
20060512
USAR
0001   00   00
90
20040513
20050512
USAR
0001   00   00
90
20030513
20040512
USAR
0001   00   00
90
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
Total


0019   06   27
1557
17.  On 13 May 2009, USAHRC-St. Louis published Orders D-05-909935 directing the applicant's honorable discharge from the USAR effective 13 May 2009.  His ARPC Form 249-E, dated 27 October 2009, shows he completed 19 years, 6 months, and 27 days of qualifying service toward nonregular retirement.  This form further shows that during the period from 27 December 2006 through 31 May 2007, the applicant was in an inactive status and thus received zero retirement points.  A breakdown of his ARPC Form 249-E is as follows:

19.  The applicant's Retirement Points Details show that during the period he was in an inactive status from 27 December 2006 through 31 May 2007 the applicant continued to perform drills, albeit in a non-paid status and accrued 21 retirement points during this period.

20.  An advisory opinion was requested from Headquarters, USAR Command, Fort McPherson, GA, on 20 August 2009 and 20 September 2009.  However, to date, no response has been received from the USAR Command.

21.  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.

22.  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 attained age 60, completed a minimum of 20 years of qualifying service, and 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 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 or she completes the service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be credited with an additional 5 months of service, issued a 20-year letter, transferred to the Retired Reserve, and authorized retired pay at age 60.

2.  The evidence of record shows the applicant was notified of the requirement to submit an MSO election statement on two occasions but failed to do so.  Accordingly, he was discharged from the IRR and transferred to the Standby Reserve on 31 December 2007.  He then executed an MSO election statement, electing to remain in the IRR.  Accordingly, he was transferred back to the IRR on 31 May 2007.

3.  It is unclear why the applicant failed to execute an MSO election statement; yet he continued to perform drills during the period he was in an inactive status and accrued 21 inactive duty retirement points during this period.  However, since he subsequently made an MSO election to remain in the IRR, it appears that his intent was to remain in the IRR all along.  It would therefore be appropriate to correct his records to show he made a timely submission of his MSO election statement and that he was not transferred to an inactive status.

4.  Correcting his records to show he remained in the IRR, and thus voiding his service in the Standby Reserve (Inactive List), would readjust his last few retirement years to 13 May 2006 through 12 May 2007 (during which his 21 additional points would added), 13 May 2007 through 12 May 2008 (which would still be a qualifying year), and 13 May 2008 through 12 May 2009 (which would still be a qualifying year).  He thus would have completed 20 qualifying years of service for nonregular retirement.

5.  Therefore, it would be appropriate to credit the applicant with the additional 21 retirement points and correct his chronological statement of retirement points to show he completed 20 qualifying years.  Additionally, the applicant should also be issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter), transferred to the Retired Reserve effective 13 May 2009, and be provided information concerning his rights, options, and procedures for applying for benefits, including the Reserve Component Survivor Benefit Plan (RCSBP).

BOARD VOTE:

____x____  ____x____  ____x____  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.  showing he made his MSO election in November 2007 and elected to remain in the IRR,

	b.  voiding the 27 December 2006 orders assigning him to the Standby Reserve (Inactive List),
	c.  crediting him with 21 inactive duty retirement points earned during the period 31 December 2006 through 31 May 2007 towards RYE 12 May 2007,

	d.  adjusting his remaining RYEs accordingly, thereby correcting his Chronological Statement of Retirement Points to show he completed 20 years of qualifying service for nonregular retirement,

	e.  transferring him to the Retired Reserve effective 13 May 2009, and

	f.  providing him information regarding applying for retired pay at age 60 and enrollment in the RCSBP.



      __________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)                                         AR20090005307



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090005307



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1