IN THE CASE OF:	  

		BOARD DATE:	    8 June 2010

		DOCKET NUMBER:  AR20090016733 


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 correction of his records to show he was retired instead of being honorably discharged by reason of expiration of his term of service (ETS).

2.  The applicant states that he enlisted in the Arizona Army National Guard (AZARNG) in May 1994.  Prior to his ETS in May 2000, he was told by his chain of command that he had to leave the ARNG.  He was pursuing a graduate degree (master's degree in curriculum and instructions) to further his career at the time and asked to be allowed to train during alternate periods or be placed in an inactive status for a short period.  He was denied this opportunity and was told he would be required to ETS instead of being allowed to extend his contract.  He was not barred from reenlistment at the time.

3.  The applicant provides the following documents:

* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 26 May 2000
* NGB Form 23A (Army National Guard Current Annual Statement), dated 3 August 2001
* DA Form 2-1 (Personnel Qualification Record)

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 9 October 1942.

3.  Prior to enlisting in the ARNG, he served in the following components:

* from 25 November 1959 to 9 July 1963, he served in the U.S. Air Force (USAF)
* from 10 July 1964 to 24 November 1965, he served in the USAF Reserve (USAFR)
* from 25 November 1965 to 1 December 1965, he had a break in service
* From 2 December 1965 to 4 September 1969, he served in the U.S. Marine Corps (USMC)
* from 5 September 1969 to 12 December 1979, he had a break in service
* From 13 December 1979 to 12 December 1983, he served in the U.S. Navy (USN)
* from 13 December 1983 to 26 May 1994, he had a break in service

4.  He enlisted in the AZARNG for a period of 6 years on 27 May 1994 in the rank/grade of staff sergeant (SSG)/E-6 and held military occupational specialty 13B (Cannon Crewmember).  He was assigned to Battery A, 2nd Battalion, 180th Field Artillery, Phoenix, AZ.

5.  He was honorably discharged from the ARNG on 26 May 2000 by reason of ETS.  His NGB Form 23A shows he completed 17 years and 4 months of qualifying service toward nonregular retirement.

6.  A breakdown of his qualifying service by year and component is shown on his NGB Form 23A.  It is noted that he received "good years" in which he earned a minimum of 50 points per year throughout his entire military service with the exception of his USAFR assignment from 10 July 1964 to 24 November 1965.  It appears he was inactive or was a non-participant during this period.

7.  He turned 60 years of age on 9 October 2002.  He was neither issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter), nor was he transferred to the Retired Reserve because he did not complete 20 "good years."

8.  An advisory opinion was obtained on 7 April 2010 from the NGB Personnel Division in the processing of this case.  An official recommended approval of the applicant's request to change his reason for discharge to retirement.  The official stated:

	a.  Correspondence from the AZARNG, dated 25 February 2010, states in part, "Soldier did not have a military service obligation remaining, resulting in his separation."  A follow up electronic mail message from the AZARNG, dated 24 March 2010, states in part, "There is no concrete evidence to determine why the Soldier was not extended."  The Soldier indicates in part, "he was pursuing his master's degree and requested that he be allowed to train during alternate periods or be placed on inactive status for a short period."  Army Regulation 
635-200 (Personnel Separations), chapter 4, paragraph 4-3a(3) states, "All Soldiers will be informed of any reasons that make them ineligible for reenlistment, extension, or, if in indefinite status, ineligible for continued service.  Soldiers will also be counseled on retirement eligibility if not eligible to extend or reenlist."  DA Form 4658 (Statement of Retirement-Eligible Soldier-Not Eligible to Reenlist, Department of the Army) will be used for personnel affected by the above referenced regulation.  His NGB Form 23A reflects that he had 17 years, 4 months, and 18 days of creditable service for retirement pay.

	b.  The NGB Personnel Division in consultation with the Enlisted Policy Branch recommend the applicant's time in the Inactive USAFR from 24 November 1965 to 9 July 1966 be extended and then move points from other years where he has excess points to the years between 10 July 1963 and 9 July 1966.  This would give him 20 years for retirement and a 20-year letter could be issued.  The Soldier should have been afforded the opportunity to extend his contract to meet retirement eligibility.

	c.  The AZARNG provided a copy of a SIDPERS printout, which reflects that the Soldier did not pass his Army Physical Fitness Test (APFT) in July 1998.  Army Regulation 350-1 (Army Training and Education), chapter 1, section 1(e)(5), states, "Soldiers who fail a record APFT for the first time or fail to take a record APFT within the required period will be flagged in accordance with Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flag)).  In the event of a record test failure, commanders may allow Soldiers to retake the test as soon as the Soldier and the commander feel the Soldier is ready.  Soldiers without a medical profile will be retested no later than 90 days following the initial APFT failure.  Reserve Component (RC) Soldiers not on active duty and without a medical profile will be tested no later than 180 days following the initial APFT failure."  The AZARNG electronic mail message, dated 19 March 2010, states in part, "that there is no evidence that the counseling was done or not done.  The current unit personnel have no memory of or records for the applicant."

	d.  Additionally, the recommendation is further supported by Army Regulation 635-200, chapter 1, and paragraph 1-15, states in part, "A substantial investment is made in training persons enlisted or inducted into the Army; therefore, this general guidance will be considered when initiating separation action.  Unless separation is mandatory, the potential for rehabilitation and further useful military service will be considered by the separation authority; where applicable, the administrative separation board will also consider these factors.  If separation is warranted despite the potential for rehabilitation, consider suspending the separation, if authorized.  Army leaders at all levels must be continually aware of their obligation to provide purpose, direction, and motivation to Soldiers.  Except as otherwise indicated in this regulation, commanders must make maximum use of counseling and rehabilitation before determining that a Soldier has no potential for further useful service and, therefore, should be separated.

9.  The applicant was provided with a copy of this advisory opinion but did not respond.

10.  Army Regulation 135-178 (ARNG and Army Reserve Enlisted Administrative Separations) prescribes policies and procedures for the separation of Reserve enlisted Soldiers.  Chapter 11 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.

11.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of U.S. Army Reserve (USAR) Soldiers.  Chapter 7 relates to the removal of Soldiers from an active status and states 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.

12.  Army Regulation 135-180 (ARNG 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 an 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 0 years.  This regulation also specifies 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.

13.  Sections 12731 through 12740 of Title 10, U.S. Code, authorize retired pay for RC military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  The term "good years" is used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.

14.  Section 1552 of Title 10, U.S. Code, states the Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice.  Except as provided in another paragraph, such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department.  Corrections under this section shall be made under procedures established by the Secretary concerned.  In the case of the Secretary of a military department, those procedures must be approved by the Secretary of Defense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his ETS should be changed to retirement.

2.  The evidence of record shows he served in multiple components of the Armed Forces, including the USAF, USAFR, USMC, USN, and ARNG for a total of 17 years, 4 months, and 8 days of qualifying service toward nonregular retirement.  Since he did not have any further military service obligation and since he did not extend or reenlist, he was honorably discharged from the ARNG on his ETS date.

3.  It is unclear why he did not extend or reenlist and there is no evidence he was denied the opportunity to extend or reenlist.  It is unlikely that his APFT failure denied him reenlistment because the AZARNG printout shows his APFT failure occurred in July 1998, nearly 2 years prior to his honorable discharge.  There was plenty of time for him to retake his APFT to become eligible for reenlistment.

4.  In order to qualify for retired pay at age 60, he must show he served the minimum number of years required to be eligible for retired pay.  He did not do so.  The advisory opinion recommends redistributing some of his ARNG excess points (over 50) to his period in the Inactive USAFR which would give him 20 years for retirement and issuing him a 20-year letter.

5.  The Board has, in fact, redistributed points between qualifying and non-qualifying years for Soldiers in the past.  However, each case is considered on its own merits.  Furthermore, given the lapse of 10 years in his case, an arbitrary ruling in his favor without knowing what his records would have shown at the time would cause prejudice to the government.

6.  On the surface, redistributing points appears to be an ideal solution for the applicant, who in this case only completed 17 years and 4 months of qualifying service.  However, in doing so, an unknown number of other ARNG/USAR Soldiers who have come before this Board would have been disadvantaged for not having been afforded the same opportunity.  Additionally, this action gives him an advantage over the thousands of ARNG/USAR Soldiers who completed the minimum 20 years of qualifying service toward non-regular retirement.

7.  Regretfully, and notwithstanding the NGB's advisory opinion, the applicant has not shown he was denied extension or reenlistment.  He has not served the minimum number of years required to be eligible for retired pay either.  Therefore, there is insufficient evidence to grant him the requested relief.

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)                                         AR20090016733



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ABCMR Record of Proceedings (cont)                                         AR20090016733



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