BOARD DATE: 10 November 2010
DOCKET NUMBER: AR20100009640
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, sufficient retirement points be awarded from 25 January 2007 to present to show qualifying years of service for nonregular service retirement pay.
2. The applicant defers his statement to counsel.
3. The applicant provides a statement from his counsel.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests the applicant be granted constructive service from 25 January 2007 until present for purposes of time in service and time in grade towards retirement.
2. Counsel states the applicant's aviation service orders and his entitlement to aviation career incentive pay were erroneously terminated on 23 August 2006. As a result he lost his military occupational specialty (MOS) and was transferred to the Individual Ready Reserve (IRR) on 25 January 2007. On 8 March 2008, while he was seeking to join another unit, the U.S. Army Human Resources Command (HRC) informed the applicant that he had lost his MOS. On 16 July 2009, the Army Board for Correction of Military Records (ABCMR) determined the orders revoking his MOS were to be revoked and his records corrected to show he never lost his aviation MOS and that he had continued to serve in that MOS as an aviator in the IRR. Counsel states that if it had not been for the administrative error by HRC concerning his MOS, the applicant would have found a unit assignment in 2007.
3. Counsel provides copies of:
* ABCMR Docket Number AR20090002751, dated 16 July 2009
* the applicant's National Guard Bureau Form 22E (Report of Separation and Record of Service) with an effective date of 31 October 2001
CONSIDERATION OF EVIDENCE:
1. On 31 October 1991, the applicant was appointed as a warrant officer one in the U.S. Army Reserve (USAR). He had 6 years, 3 months, and 1 day of previous enlisted service in the Regular Army and the USAR. On 30 December 1991, the applicant was commissioned as a warrant officer two in the California Army National Guard (CAARNG).
2. On 31 October 2001, the applicant was discharged from the CAARNG and assigned to the USAR Control Group (Annual Training).
3. On 21 December 2001, the applicant was transferred to the USAR Control Group (Reinforcement).
4. On 25 April 2005, the applicant was transferred to the 158th Aviation Battalion, USAR, at Fort Carson, CO.
5. On 23 August 2006, HRC terminated the applicant's aviation service orders and entitlement to aviation career incentive pay.
6. On 25 January 2007, the applicant was transferred to the USAR Control Group (Reinforcement). The reason stated on the orders was "cogent personal reasons."
7. On 10 April 2009, the applicant submitted an application to the ABCMR requesting removal of all documents related to a Flight Evaluation Board from his official military personnel file, revocation of aviation service termination orders, restoration of aviation MOS, and reinstatement in the IRR. On 16 July 2009, the ABCMR determined the orders terminating the applicant's aviation service orders and entitlement to aviation career incentive pay were to be revoked and his records corrected to show he never lost his MOS and that he continued to serve in that MOS as an aviator in the IRR through the present.
8. On 30 October 2009, HRC reinstated the applicant's MOS 153BG (Aviation Maintenance Officer) effective 26 November 1993.
9. On 23 December 2009, HRC reinstated the applicant's entitlement to aviation career incentive pay with an effective date of 8 December 2005.
10. On 12 October 2010, the applicant was transferred to the 158th Aviation Regiment in New Century, KS.
11. The applicant's U.S. Army Reserve Personnel Command Form 249 (Chronological Statement of Retirement Points) shows his service and retirement points as:
* retirement years ending (RYE) 26 March 1987, 7 December 1987, and 26 March 1988 through 26 March 2005 - received 50 retirement points or more
* RYE 26 March 2006 - received 20 retirement points (5 inactive duty and 15 membership)
* RYE 26 March 2007 - received 19 retirement points (4 inactive duty and 15 membership)
* RYE 26 March 2008 - received 15 retirement points (15 membership only)
* RYE 26 March 2009 - received 15 retirement points (15 membership only)
* RYE 26 March 2010 - received 15 retirement points (15 membership only)
12. Title 10, U.S. Code, chapter 1223 (Retired Pay for Nonregular Service), section 12731 (Age and Service Requirements), provides that a person is entitled upon application to retired pay if the person is age 60 and has performed at least 20 years of qualifying service. A qualifying year is determined to be a year in which a minimum of 50 retirement points have been credited for a Reserve member.
DISCUSSION AND CONCLUSIONS:
1. Counsel contends sufficient retirement points should be awarded to the applicant for the period 25 January 2007 to present to show qualifying years for nonregular service retirement pay. Counsel states that if it had not been for the administrative error by HRC concerning the applicant's MOS, the applicant would have found a unit assignment in 2007.
2. The applicant was transferred to the USAR Control Group (Reinforcement) on 25 January 2007 due to personal reasons. According to counsel's statement, the applicant was advised that his MOS had been removed when he was looking for a unit assignment on 8 March 2008. Therefore, the evidence does not support the contention that the applicant would have found a unit assignment in 2007 had it not been for the HRC administrative error.
3. There is no substantive evidence the applicant would have found a unit assignment in 2007 if it had not been for the administrative error by HRC. Searching for a unit assignment is a volitional act. Therefore, a determination as to whether or not he was searching for a unit assignment or whether he would have found a unit assignment cannot be made.
4. During the applicant's RYE 26 March 2006 and 26 March 2007 he failed to attain the required 50 retirement points. He was not transferred from a troop program unit until 25 January 2007. Therefore, there is insufficient basis to show he would have attained the required 50 retirement points had he found a unit assignment.
5. In view of the above, there is insufficient basis for awarding unearned retirement points for qualifying years of service for retirement.
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) AR20100009640
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) ARMY | BCMR | CY2012 | 20120004752
The applicant requests, through a Member of Congress, correction of his records to show additional retirement point credit for his service in the U.S. Army Reserve (USAR) during the period 2007 to 2011. The code "P" was entered in item 10c (Retirement Points) before the retirement point credit of the DA Forms 1380 provided by the applicant. Since his records do not contain orders attaching him to a USAR unit for retirement points only, and the DA Forms 1380 he provided do not contain the...
ARMY | BCMR | CY2013 | 20130000373
The applicant states on 2 August 2010 his Army Board for Correction of Military Records (ABCMR) request was approved and granted him full relief. The applicant then applied to this Board requesting relief in the form of: * voiding of his 10 September 2007 discharge from the USAR * voiding of his 25 February 2008 enlistment contract * promotion to captain (CPT), effective 8 February 2007 * crediting him with qualifying service for retirement from 11 September 2007 through the present in...
ARMY | BCMR | CY2009 | 20090005307
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. 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...
ARMY | BCMR | CY2009 | 20090001419
He also requests credit of 50 retirement points per year from the date of discharge from the USAR Control Group on 20 April 1998 to the date of transfer to Retired Reserve status. The applicant contends that his discharge orders should be revoked and he should be transferred to the Retired Reserve and that he should be granted 50 retirement points for each year from the date he was discharged from the USAR until the date he was transferred to the Retired Reserve. With respect to the...
ARMY | BCMR | CY2013 | 20130003159
The applicant requests reconsideration of the Board's denial of his previous request for the following: * orders for assignment to the Individual Ready Reserve (IRR) at his current grade and date of rank at the time of his discharge * orders for assignment to the Retired Reserve * amendment of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 January 2007 to show assignment to the Retired Reserve 2. As such, he was not provided the opportunity...
ARMY | BCMR | CY2011 | 20110003972
The applicant requests promotion to lieutenant colonel (LTC) by the September 2005 Special Selection Board (SSB) with back pay and allowances and placement on the Retired List in the grade of LTC. However, despite being in the Retired Reserve, in 1993 he was considered for promotion to MAJ, but he was not selected. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * Voiding Orders 08-036-00050, issued by Headquarters,...
ARMY | BCMR | CY2008 | 20080017595
The applicant requests, in effect, that his U.S. Army Reserve (USAR) discharge orders be revoked and that he be transferred to the Retired Reserve. On 30 March 2007, Joint Forces Headquarters, RIARNG, published Orders 089-011, directing the applicant's honorable discharge from the RIARNG and transfer to the USAR Control Group (IRR) effective 1 April 2007. The applicant's records do not show that he requested a transfer to the Retired Reserve.
ARMY | BCMR | CY2010 | 20100013056
His ARNG Retirement Points History Statement, dated 13 March 2007, shows he completed 20 years of qualifying service for a nonregular retirement. On 25 March 2010, his ARNG Retirement Points History Statement was corrected to show he had a non-military civilian break and credited him with 19 years, 7 months, and 14 days of creditable service for retirement pay. Therefore, the ARNG Retirement Points History Statement, dated 25 March 2010, correctly shows his status and his qualifying service.
ARMY | BCMR | CY2014 | 20140021374
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. He has not been able to complete phase II, the resident portion, because he was issued a temporary physical profile. The evidence of record does not support his contention that he was not authorized to perform duty (earn retirement points) from September 2012 to December 2014 due to his medical condition.
ARMY | BCMR | CY2010 | 20100006960
On 28 October 2009, by letter to his Member of Congress, HRC-STL stated that to be eligible for retired pay at age 60 by law, a Reserve Component (RC) Soldier must have completed a minimum of 20 qualifying years of service and that as of 1 July 1949, the last 8 qualifying years must be in an RC. Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, states that to be eligible for retired pay an individual does...