BOARD DATE: 12 July 2011
DOCKET NUMBER: AR20100029425
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:
* her years of service for regular retired pay be increased to 26 years
* she be paid her basic pay and allowances from her date of retirement to the date she would have achieved 26 years of service (1 July 2005)
* she be paid retired pay based on 26 years of service
2. The applicant states:
* the retention control point (RCP) for a master sergeant (MSG/E-8) is 26 years
* the Army Reserve Personnel Command (ARPERSCOM) emailed her in April 2002 and told her to submit her retirement papers
* her husband, a retired E-8, looked at her DD Form 214 (Certificate of Release or Discharge from Active Duty) and asked why she hadn't retired at 26 years of service
3. The applicant provides:
* an ARPERSCOM email, dated 10 April 2002
* her DD Form 214
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. She enlisted in the U.S. Army Reserve on 28 March 1975. She was ordered to active duty on 2 July 1979 in an Active Guard Reserve (AGR) status. She was promoted to MSG on 1 October 1995. She reenlisted for a period of 3 years on 20 March 2000 and her expiration term of service (ETS) date was then established as 19 March 2003. She did not reenlist or extend this enlistment.
3. On 31 January 2003, she retired in the rank of MSG after completing 23 years, 9 months, and 7 days of creditable active service.
4. Her retirement orders show the entry "Vol [Voluntary] Retirement: 23 Years, 09 Months, and 07 Days."
5. She provided an email, dated 10 April 2002, from ARPERSCOM which contains three separate messages, as follows:
a. On 9 April 2002, ARPERSCOM emailed the applicant as follows:
I need to know the status of your retirement request [emphasis added]. You[r] retirement date is within the next 12 months and you are eligible to submit for voluntary retirement at this time. Pls [Please] let me know soon what the status is with your request [emphasis added]. Thanks and have a great day.
b. On 10 April 2002, the applicant responded as follows:
As of this date I just returned from convalescent leave and have done absolutely nothing with retirement. Will let you know something real soon.
c. On 10 April 2002, ARPERSCOM responded as follows:
You are at the 9 month mark before retiring. You need to submit [retirement paperwork]. Understand, most soldiers don't realize that if a soldier does not submit for voluntary retirement, the[y] are just separated without any benefits and must go thru the Army Board for Correction of Military Records to clear it up after separation. Believe me you don't want that to happen. Pls [please] initiate voluntary request for retirement and submit to this office ASAP [as soon as possible]
.
6. Table 8-1 of Army Regulation 140-111 (U.S. Army Reserve Reenlistment Program), in effect at the time of her retirement, stated RCP for Soldiers in the ranks of MSG/E8 will not exceed 24 years.
DISCUSSION AND CONCLUSIONS:
1. The applicant makes it sound like the ARPERSCOM forced her to retire at 23 years when she could have served to her RCP, which she claims was 26 years.
2. The regulation in effect at the time of the applicant's retirement established the E-8 RCP at 24 years, not 26 years.
3. The applicant reenlisted for 3 years on 20 March 2000; her ETS date was established as 19 March 2003. There are no documents in the applicant's records showing that she attempted to reenlist or extend her enlistment beyond 19 March 2003.
4. The email submitted by the applicant suggests she made known to ARPERSCOM her intent to voluntarily retire. This makes sense given that she did not initiate an action to reenlist or extend her enlistment. When she did not take action to submit her retirement paperwork ARPERSCOM cautioned her that if she did not take action to retire within 9 months' she would be discharged on her ETS date. That would mean she would receive no retired pay and have no retirement benefits.
5. Clearly, the applicant was not forced to do anything by ARPERSCOM other than make a decision about her career. She could have chosen to extend her enlistment for 1 year in order to reach her RCP or she could have submitted her voluntary request for retirement. She chose to retire.
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) AR20100029425
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ABCMR Record of Proceedings (cont) AR20100029425
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