IN THE CASE OF:	  

		BOARD DATE:	      29 December 2009

		DOCKET NUMBER:  AR20090011412 


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 military records be corrected to reflect all retirement points and qualifying years earned subsequent to his discharge from the Ohio Army National Guard and transfer to the Retired Reserve.  

2.  The applicant states, in effect, that he rightfully earned 1036 retirement points in two war zones in service to his country and that no clear definition was ever given in regards to not being allowed back into the military.  He indicates that from June 1971 to December 1998 he earned a total of 2707 points of combined Army active duty and National Guard time and that he retired from the National Guard on 5 January 1999 with a notification of eligibility at age 60 letter.  He came back into the U.S. Army Reserve (USAR) in February 2005 where he deployed to Kuwait (2005-2006) in support of Operation Iraqi Freedom and again deployed to Afghanistan (2007-2008) in support of Operation Enduring Freedom.  He goes on to state that after demobilization in January 2009 he called the retirement section at the U.S. Army Human Resources Command in St. Louis, Missouri (USAHRC - St. Louis) with a retirement question and he was told that he should not have reentered the military at all and they stripped him of all the points that he earned while deployed and drill points that he earned in between deployments from February 2005 to December 2008.  That office claimed that the basis for this denial is paragraph 1, section b, of his retirement letter.  He states that no one explained that he could not come back in when he reenlisted in the USAR in 2005 and it was not a red flag when he reenlisted (for an indefinite period) while in theater in 2006.

3.  The applicant provides DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 18 November 2006 and 28 December 2008; a Notification of Eligibility for Retired Pay at Age 60 with 15 Years of Service letter; and documentation from USAHRC - St. Louis pertaining to his retirement in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  Having prior active service in the Regular Army and service in the USAR, the applicant enlisted in the Army National Guard on 28 January 1983.  On 
30 November 1998, he was honorably discharged from the Ohio Army National Guard and transferred to the Retired Reserve.

2.  On 5 January 1999, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 with 15 Years of Service letter.  Paragraph 1b of this letter states "Your (sic) are not entitled to earn additional points towards non-regular retired pay unless specifically authorized by the Secretary of the Army.  Retired pay at age 60 will only be based on points earned prior to transfer to the Retired Reserve." 

3.  The applicant's enlistment contract is not available.  However, on an unknown date in February 2005, the applicant enlisted in the USAR.  He was ordered to active duty on 7 September 2005 in support of Operation Iraqi Freedom.  He served in Kuwait from 20 October 2005 to 17 October 2006.  On 23 September 2006, he reenlisted in the USAR for an indefinite period.  On 18 November 2006, he was released from active duty.  The applicant was ordered to active duty on 
17 January 2007 in support of Operation Enduring Freedom.  He served in Afghanistan from 17 December 2007 to 1 November 2008.  On 28 December 2008, he was released from active duty.

4.  The applicant provided documentation from the USAHRC - St. Louis which shows he earned a total of 2707 retirement points during the period 14 June 1971 to 1 December 1998.

5.  The applicant's U.S. Army Reserve Personnel Command Chronological Statement of Retirement Points, dated 17 December 2009, does not show that he earned any retirement points during the period February 2005 to 24 February 2008.  This statement shows he earned 308 active duty points during the period 25 February 2008 to 24 February 2009.

6.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Transition and Separations Branch, USAHRC - St. Louis.  The opinion states that the applicant was discharged from the Ohio Army National Guard due to a reorganization of the Ohio Army National Guard unit structure, that he was issued a 15-Year letter, and that he was transferred to the Retired Reserve.  The opinion points out that the 15-Year letter clearly states in paragraph 1b that he may not reenter an active status unless specifically authorized by the Secretary of the Army.  Despite that directive the applicant was enlisted to an active status in the USAR in February 2005 with subsequent reenlistment in 2006.  The applicant, from all records available to that office, served honorably during two active duty mobilizations and was transferred back to his Reserve unit upon release from active duty.  

7.  The advisory opinion states that while the applicant, a senior noncommissioned officer, should have been more forceful with the recruiter concerning paragraph 1b of his 15-Year letter, his current predicament was created by the recruiter.  USAHRC - St. Louis appropriately withdrew his service time and points based on the fact that there was no letter of indispensability from the Secretary of the Army, and therefore no legal authority to grant the service time.  However, it is the opinion of the Transition and Separations Branch that the applicant served in good faith, perhaps believing that his enlistment was a de facto approval by the Secretary of the Army.  That office recommends that the applicant's request be favorably considered by the Board and that the Board direct that all service time performed by the applicant from February 2005 forward be approved; that his service record be annotated to reflect that he was and is approved by the Secretary of the Army to actively participate in the Reserve Component; that the Defense Finance and Accounting Service be apprised of the action and his pay account be appropriately corrected; and that the Recruiting Command be apprised of this case and directed to ensure that applications for enlistment from Soldiers in this category be sent to the office of the Secretary for approval prior to enlistment. 

8.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  The advisory opinion was returned as undeliverable.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the applicant's 15-year letter which states that he was not entitled to earn additional points towards his non-regular retired pay unless specifically authorized by the Secretary of the Army, he was enlisted in the USAR in February 2005.  Following this enlistment, he was ordered to active duty in support of Operation Iraqi Freedom and he served in Kuwait for almost a year.  Evidence of record also shows he reenlisted in the USAR on 23 September 2006, that he was ordered to active duty on 17 January 2007 in support of Operation Enduring Freedom, and that he served in Afghanistan from 
December 2007 to November 2008.
2.  While the applicant bears some of the responsibility in this matter, he has served his country honorably in time of war and he deserves to be credited with his service just as any other Soldier who is recalled from retirement would be.   

3.  Based on the foregoing, it would be equitable to correct the applicant's military records to show his February 2005 and 23 September 2006 enlistments in the USAR were approved by the Secretary of the Army and that all retirement points and pay earned during these enlistments be reinstated. 

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.  correcting his military records to show his February 2005 and 
23 September 2006 enlistments in the USAR were approved by the Secretary of the Army; and

	b.  that all retirement points and pay earned during these enlistments be reinstated to the applicant. 



      _______ _ 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)                                         AR20090011412





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090011412



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1