IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100021241 


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 to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he retired with 20 years of service.

2.  The applicant states that his DD Form 214 with a separation date of 16 December 2008 shows he had 17 years and 11 months of active duty service. He states this DD Form 214 does not include his basic training and advanced individual training active duty service periods or his years in the U.S. Army Reserve (USAR).  He states he served 3 years on active duty with his USAR unit and it is not recorded on his DD Form 214.  He concludes by stating he is entitled to full active duty retired pay based on 20 years of service.  

3.  The applicant provides his DD Forms 214 with separation dates of 15 May 1985 and 16 December 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR on 8 November 1984 and incurred an
8-year mandatory service obligation.  He entered active duty on 10 January 1985 to attend basic and advanced individual training.  

2.  On 15 May 1985, he was awarded military occupational specialty 76X (Subsistence Supply Specialist) and released from active duty training.  He was issued a DD Form 214 that shows in item 12 (Record of Service) these entries in year(s), month(s) and day(s) format:

* 12c (Net Active Service This Period) "00 04 07"
* 12e (Total Prior Inactive Service) "00 02 02" 

3.  The applicant's record is void of documents showing his service in the USAR.

4.  The applicant enlisted in the Regular Army on 3 January 1991 in pay
grade E-2.  He is a Southwest Asia and Operation Iraqi Freedom Veteran. 

5.  On 14 November 2008, he was honorably discharged from the Regular Army upon the completion of his required active duty service and apparently enlisted in the USAR.  His rank at the time of separation was sergeant in pay grade E-5.  He was issued a DD Form 214 that shows in item 12 these entries in year(s), month(s) and day(s) format:

* 12c "0017 11 14"
* 12d (Total Prior Active Service) "SEE BLOCK #18"
* 12e (Total Prior Inactive Service) "SEE BLOCK #18"
* 12h (Effective Date of Pay Grade) "2007 06 14"

6.  Item 18 (Remarks) of his DD Form 214 with a separation date of 16 December 2008 states the following:

* SEPARATED FROM SERVICE ON TEMPORARY RECORDS AND THE SOLDIER'S AFFIDAVIT
* DD FORM 215 WILL BE ISSUED TO PROVIDE MISSING INFORMATION
* SEPARATION PAY $59,616.18
* MEMBER IS ENTITLED TO FULL INVOLUNTARY SEPARATION PAY

7.  On 25 February 2010, he was discharged from the USAR by Orders 10-026-00001 issued by Headquarters, 81st Regional Support Command on 26 January 2010.

8.  In the preparation of these proceedings, an advisory opinion was obtained from the U.S. Army Human Resources Command (HRC).  In its opinion, HRC stated it corrected the applicant's DD Form 214 when it issued a DD Form 215 (Correction to DD Form 214) on 16 March 2011.  This DD Form 215 added his period of active duty and inactive duty service as follows in format year(s), month(s) and day(s):

* item 12d "00 04 06"
* item 12e "00 02 02"
9.  The opinion also stated HRC in coordination with the Defense Finance and Accounting Service (DFAS) was not able to verify any additional active duty service between the years 1985 to 1990.  HRC concluded the applicant was credited with 18 years of qualifying service.

10.  The applicant was provided a copy of this opinion, but did not respond within the required period.

11.  References:

	a.  Title 10, U.S. Code, section 1176 provides for the retention of an enlisted member of the regular component after completion of 18 or more, but less than 20, years of service who is selected for involuntary separation, or whose term of enlistment expires and who is denied reenlistment, and who on the date on which the member is to be discharged is within 2 years of qualifying for retirement under sections 3914 or 8914 of this title.  

	b.  Title 10, U.S. Code, section 3914 provides for the retirement of Soldiers who have completed 20 but less than 30 years of active Federal service in the U. S. Armed Forces may be retired at his or her request.  The Soldier must have completed all required service obligations at the time of retirement.  

	c.  Army Regulation 601-280 (Army Retention Program) prescribes the criteria for the Army Retention Program and sets forth policies, command responsibilities for the immediate reenlistment or extension of Soldiers currently service in the Active Army.  Paragraph 4-9 provides for the extension of Soldiers' enlistment contracts whether or not they are reenlistment or extension qualified based on their attainment of 18 but less than 20 years of active Federal service.  Soldiers may request an extension to complete 20 years of active Federal service and will be limited to the number of months necessary to complete 20 years of active Federal service.

	d.  Army Regulation 635-200 (Enlisted Separations) paragraph 12-3 provides that for retirement years of service are computed by adding all active Federal service in the Armed Forces and service computed under Title 10, U.S. Code, section 3925.  Paragraph 12-4 provides for the retirement of Soldiers based on Title 10, U.S. Code, section 3914 who have completed 20 years of active Federal service.  For Regular Army Soldiers, their date of retirement is the first day of the month in which the Soldier is released from active duty. 

   e.  Army Regulation 635-200 states that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.
	f.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes that SPD codes are used to provide a statistical accounting of the reasons for which active Army personnel are separated from active duty.  The reasons for separating Soldiers from active duty and their corresponding SPD codes will be entered on the Soldiers' DD Forms 214.  The SPD code "RBD" means separation for sufficient service for retirement in accordance with Army Regulation 635-200, chapter 12.

   g.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) provides eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  These RE codes are used for administrative purposes and are not to be considered derogatory in nature.  Simply, the RE codes are used for identification of an enlistment separation processing procedure.  Table 3-1 includes a list of Regular Army RE codes.  RE code RE-4R applies to a Soldier who is retired for length of service with 15 or more years of active Federal service and who is not eligible for enlistment. 
   
DISCUSSION AND CONCLUSIONS:

1.  With the addition of 4 months and 6 days of active Federal service completed while a member of the USAR, the applicant's total active Federal service is now recalculated to 18 years, 3 months, and 20 days.  Therefore, if this period of active Federal service had been known by the applicant's chain of command, he would have been retained on active duty for he had attained 18 years of active Federal service.  His retention on active duty would have been a matter of law.

2.  Therefore, he is entitled to a correction of his records to show he remained on active duty until he had completed 20 years of active Federal service and met retirement eligibility criteria by an operation of law.  

3.  Accordingly, the applicant's DD Form 214 should be corrected to show his discharge was for retirement based on sufficient length of service in accordance with Army Regulation 635-200, chapter 12.  His retirement date should be shown as 31 August 2010 with transfer to the Retired List on 1 September 2010, after completing 20 years and 4 days of active service.  Based on this correction, his separation code should be changed to "RBD" and his RE code changed to "RE-4R." 

4.  As the applicant is now qualified for retirement, all comments in the remarks section of his DD Form 214 should be removed concerning his initial involuntary separation and its affiliated separation pay.  With the correction of his record extending him on active duty until his retirement date of 31 August 2010, he is entitled to full pay and allowances for this creditable period of active Federal service and then retired pay in the grade of E-5 as of 1 September 2010.  In addition, the applicant is advised that his separation pay will be recouped.

5.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant's SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp. 

BOARD VOTE:

____X___  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 as follows: 

	a.  voiding his DD Form 214 with a separation date of 16 December 2008 and the related DD Form 215 and issuing him a new DD Form 214 with, in part, entries as follows:

* item 12b (Record of Service [Separation Date This Period]) "2010 08 31"
* item 12c "0019 07 28"
* item 12d "00 04 06"
* item 12e "00 02 02"
* item 18 "SUBJECT TO ACTIVE DUTY RECALL BY THE SECRETARY OF THE ARMY"//"
* ensuring the entries "SEPARATION PAY $59616.18" and "MEMBER IS ENTITLED TO FULL INVOLUNTARY SEPARATION PAY" are not entered in item 18
* item 23 (Type of Separation) to "RETIREMENT"
* item 25 (Separation Authority) to "ARMY REGULATION 635-200, PARAGRAPH 12-4"
* item 26 (Separation Code) to "RBD"
* item 27 (Reentry Code) to "RE-4R"
* item 28 (Narrative Reason for Separation) to "SUFFICIENT SERVICE FOR RETIREMENT"

	b.  issuing him retirement orders showing he retired on 31 August 2010 and was placed on the Retired List in pay grade E-5 on 1 September 2010; and

	c.  paying to the applicant all monies that becomes due as result of these corrections.




      _______ _   _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)                                         AR20100021241



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ABCMR Record of Proceedings (cont)                                         AR20100021241



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