IN THE CASE OF:	  

		BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110002270 


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 credit for 6 months of active service in order to qualify for a Regular retirement.

2.  The applicant states he was placed in the Retired Reserve with 19 years and 6 months of active duty service, but was told he had enough time for an active duty retirement.  He contends that he was discharged early due to an automobile accident which hindered him from performing his duties.  His command was also looking for a reason to discharge him because he had threatened to turn them in for breaking Army regulations, such as falsifying Army Physical Fitness Test scorecards and weight records.  He was simply placed in the Retired Reserve and not afforded the opportunity to fulfill his military obligation.  He also contends that he was not discharged in accordance with Army regulations which clearly state the Secretary of the Army had to approve his discharge.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty), DD Form 220 (Active Duty Report), National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), NGB Form 23B (Army National Guard Retirement Point History Statement), an excerpt from National Guard Regulation 600-5 (The Active Guard Reserve (AGR) Program), and a memorandum and letter from the Virginia Army National Guard (VAARNG).


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.  An NGB Form 22 shows the applicant enlisted in the VAARNG on 8 March 1974 and was discharged from the VAARNG on 28 May 1981 after completing 7 years, 2 months, and 21 days of service.

3.  He enlisted in the Regular Army on 1 September 1981 and was released from active duty on 16 December 1985 after completing 4 years, 3 months, and 16 days of active duty service.

4.  On 5 March 1986, he again enlisted in the VAARNG and was ordered to active duty in the AGR Program effective 29 September 1986.

5.  In a memorandum from the Office of the Adjutant General of Virginia, dated 25 April 2000, he was informed he had completed 18 years of active Federal service as of 28 October 1999 and his 20-year retirement eligibility date was 28 October 2001.

6.  Office of the Adjutant General of Virginia Orders 114-114, dated 24 April 2001, directed his discharge from the VAARNG and transfer to the Retired Reserve effective 13 April 2001.

7.  His DD Form 214 (dated 28 October 2010, for the period ending 13 April 2010), as amended by a DD Form 215 (Correction to DD Form 215), dated 19 November 2010, shows he was honorably released from active duty after completing 14 years, 6 months, and 15 days of active duty service during the period covered by the DD Form 214 and he had 4 years, 3 months, and 16 days of prior active duty service.  This DD Form 214 also shows he had 8 years, 3 months, and 5 days of prior inactive service.  He was issued an NGB Form 22 that shows his service as honorable.

8.  In a letter, dated 5 January 2011, he was informed by the Director of Manpower and Personnel, Office of the Adjutant General of Virginia, that the VAARNG is no longer in possession of and could not locate from other sources any documentation pertaining to his discharge from the VAARNG.  Based on their inability to locate the proper documentation, he was advised by that office to apply to the ABCMR for correction of his records to show he completed 20 years towards a military retirement.

9.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, who indicated the following:

	a.  It appears an administrative error occurred resulting in the Soldier being discharged prior to being eligible to receive retirement benefits.

	b.  An email from the VAARNG, dated 6 November 2011, states, "The applicant was separated from the service for several reasons.  Predominantly because he tested positive for drugs on two occasions which resulted in his subsequent AWOL [absent without leave] and arrests for breaking into someone's home with the intent to rob.  Civilian authorities turned him over to the military who requested his resignation and he did so in lieu of facing civilian court charges.  Of course, this 'new' information changes Virginia's stance on paying him for 20 years of serving honorably."  Documentation has not been provided showing the Soldier voluntarily resigned or was given due process according to Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations).

	c.  His NGB Form 22 shows he was honorably discharged on 13 April 2004 [sic].  The only indication that there may have been some negative circumstances relating to the Soldier's discharge was 9 years later (28 October 2010) when a DD Form 214 was generated.  The DD Form 214 shows the Soldier was released from active duty with a general discharge under honorable conditions as a result of being AWOL.  A review of the Soldier's OMPF does not reflect the Soldier being in an AWOL status during the time in question.

	d.  In the absence of documentation showing the Soldier voluntarily resigned or was not given due process, a consultation was held with the Army National Guard Enlisted Policy Branch and Retirement Services.  The following two courses of action (COA) were offered:  first, to utilize Title 10, U.S. Code, section 1405, time (inactive duty points) to equate to the total length of service formula.  This will put the Soldier over 20 years active service and retire him with a Regular retirement effective the end of March 2001 with up to 6 years of back pay.  The second COA would be to authorize the VAARNG to reinstate the Soldier until he reaches 20 years of active service, at which time the VAARNG would retire the Soldier at the end of the 6-month period with back pay for 6 months.

	e.  The State does not support this recommendation.

10.  The advisory opinion was provided to the applicant for comments and/or rebuttal.  He responded and stated the following:

	a.  Paragraph 1 states, "request reinstatement into the AGR Program," but he does not understand what it means.

	b.  He agrees with most of paragraph 3a except that the word "erroneously" should be replaced with "intentional."  He hopes it does not come down to proving a conspiracy against him at the time.

	c.  All statements and accusations in paragraph 3b are false.  He was never AWOL, tested positive for drugs, or commit breaking and entering.  He was never arrested for anything.

	d.  He was in a serious automobile accident when his truck ran into a house after he had fallen asleep due to excessive work.  He was hospitalized, charged with improper driving, but never arrested.

	e.  In paragraph 3d, the year 2004 should read 2001.  Also, his DD Form 214 does not show the character of his discharge as general under honorable conditions.

	f.  Six years of back pay (paragraph 3e) is wrong because he was discharged in 2001.  The second COA will not help him because over the last 10 years he's been living homeless and is mentally damaged.

	g.  The wreck he was in kept him under a doctor's care for months and the fact is that he was discharged so a position could open for someone else.  He should have been medically discharged and was not treated fairly.  He dedicated himself for 27 years and can produce evaluation reports that show he was a top-notch and dedicated Soldier.

11.  Army Regulation 135-178 states that Soldiers having completed 18 but fewer than 20 years of qualifying service for retired pay in accordance with Title 10, U.S. Code, section 12732, will not be involuntarily separated without the approval of the Secretary of the Army or his designated representative.  All recommendations for involuntary separation of Soldiers in this category will be sent to Headquarters, Department of the Army, for consideration.

12.  National Guard Regulation 600-5, paragraph 6-1b (1), provides that AGR Soldiers within 2 years of becoming eligible for retired or retainer pay will not be involuntarily released from full-time National Guard duty unless the release is approved by the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request and contentions have been carefully considered.

2.  The memorandum from the Office of the Adjutant General of Virginia, dated 25 April 2000, indicates he had completed 18 years of active Federal service as of 28 October 1999 and his 20-year retirement eligibility date was 28 October 2001.  However, for reasons that are not adequately explained by the VAARNG, he was discharged 6 months short of attaining the required years of service for Regular retirement.

3.  Having completed over 19 years and 6 months of qualifying service for retired pay, he should not have been separated without the approval of the Secretary of the Army or his designated representative.  Without showing he completed 6 additional months of qualifying active service, he is not entitled to a Regular retirement.  It seems unjust to separate a Soldier who actively served his country honorably for over 19 years.

4.  In view of the above, the applicant's records should be corrected to show he was honorably retired effective 31 October 2001 and placed on the Retired List effective 1 November 2001 under the authority of Army Regulation 635-200, chapter 12, by reason of completion of sufficient service for retirement.

5.  Based on this correction, the applicant is required to make a Survivor Benefit Plan (SBP) election.  This correction of records may have an effect on his SBP status/coverage.  He is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSO's by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions he may have.


BOARD VOTE:

____x___  ___x____  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by:

   a.   voiding his 13 April 2001 release from active duty;

   b.  auditing his records to determine when he would have completed 20 years of active service; and

   c.  amending his DD Form 214 to show he was retired due to completion of sufficient service for retirement effective the last day of the month in which he would have completed 20 years of active service and placing him on the Retired List effective the following day with all back pay and allowances and back retired pay due as a result of this correction.

2.  The applicant should be provided information concerning his rights, options, and procedures for applying for benefits, including the Survivor Benefit Plan.



      ____________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)                                         AR20110002270



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ABCMR Record of Proceedings (cont)                                         AR20110002270



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