IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110003309 


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 the effective date of his retirement to show 31 October 2009.

2.  The applicant states the National Defense Authorization Act (NDAA) of 2008 signed into law on 28 January 2008 allowed for early retirement of Reserve Component members serving in contingency operations.  It allowed for every 90 days of service in contingency operations to be credited towards early retirement.  He claims his retirement date was calculated based on this guidance which was the basis for his request to retire on 31 October 2009.  Upon receiving his retirement orders he discovered his retirement date was calculated as 31 January 2010.  He states he served in Iraq from 1 December 2007 through 12 December 2009 and calculating from the effective date of the law, 28 January 2008, this is a total of 319 days of which he believed he would be credited with 270 days.  He claims it was not until January 2010 that he learned that his requested retirement date of 31 October 2009 was in error.

3.  The applicant provides the following documents in support of his application:

* self-authored statement
* U.S. Army Human Resources Command (USAHRC), St. Louis, Missouri, retirement eligibility correspondence
* Missouri Army National Guard (MOARNG) Director of Manpower and Personnel memorandum, dated 21 January 2011
* MOARNG Retirement Services Officer's statement
* National Guard Bureau (NGB) policy memoranda

CONSIDERATION OF EVIDENCE:

1.  The record shows the applicant entered active duty in support of Operation Iraqi Freedom under Title 10, U.S. Code, section 12302, on 1 December 2007 while serving in the MOARNG.  He served in Iraq from 5 February through 20 November 2008, and was released from active duty on 12 December 2008.

2.  On 23 February 2009, the applicant applied for retired pay benefits.

3.  On 28 May 2009, MOARNG Orders 148-431 discharged the applicant from the MOARNG and transferred him to the Retired Reserve effective 30 October 2009.

4.  On 7 December 2009, the applicant's retirement request was approved by the Chief, Transition and Separations Branch, USAHRC-St. Louis, and authorized in USAHRC-St. Louis Orders P12-912001.  These orders authorized the applicant's placement on the Retired List on 31 January 2010 in the grade of master sergeant.

5.  The record is void of any indication the applicant tried to withdraw his retirement request subsequent to receiving his retirement orders from 
USAHRC-St. Louis.

6.  An advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, in connection with the processing of this case.  It indicates the initial guidance published on 26 March 2009 did not address the fiscal year (FY) requirement.  However, this policy was rescinded on 22 June 2009 with new policy guidance that outlined the FY requirement.  It further states the Department of Defense Instruction and law clearly established eligibility guidance prior to the applicant applying for retired pay.  Based on these facts, NGB recommends disapproval of the applicant's request.

7.  On 14 March 2012, the applicant responded to the NGB advisory opinion.  He states his complaint is that the MOARNG Retirement Services Officer counseled him using the calendar year 90-day aggregate period.  He claims he was not counseled or made aware of the changed policy letter showing the 90-day FY aggregate requirement.  He states his record was sent to USAHRC in February 2009 and was not opened or reviewed until December 2009.  As a result, he believes the responsibility for the error rests with the MOARNG Retirement Services Office.

8.  NGB memorandum, dated 26 March 2009, subject:  Implementation Guidance for Reduced Retirement Age for Army National Guard (ARNG) Soldiers, provided the initial guidance for reduced age eligibility for receipt of non-Regular service retired pay.  The initial guidance was expanded in a corrected NGB policy memorandum, dated 22 June 2009.  The eligibility guidance stated ARNG Soldiers who serve on active duty or Full-Time National Guard Duty (FTNGD) on or after 29 January 2008 under Title 10, U.S. Code, sections 101(a)(13)(B), 12301(a), 12301(d), 12302, 12304, and 12310, "will accrue, for each day of qualifying service, 1 day for use in computing eligibility for reduced age."

9.  The policy memoranda stated for each aggregate of 90 qualifying days in an FY, a Soldier is eligible for reduction of 3 months in age of eligibility for retired pay for non-Regular service.  A day of duty shall be included in only one aggregate of 90 days.  Only service performed after 29 January 2008 could be credited for this purpose.  It further provided guidance on determining aggregate number of days in the qualifying periods.  It stated to add all the days of qualifying service in each FY, divide the total by 90, and read only the whole number.  The result is the number of qualifying 90-day periods in each FY in which the Soldier has qualifying periods for this purpose.  This memorandum also provides examples to show the 90-day qualifying period had to be earned within an FY to qualify.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to change his retirement date has been carefully considered.  However, there is insufficient evidence to support his claim.

2.  Although it appears the policy guidance was unclear regarding the FY limitations on reduction for retired pay eligibility when initially published in March 2009, the FY limitations were clearly established in the corrected NGB policy memorandum issued in June 2009, as confirmed in the NGB opinion.

3.  Further, notwithstanding the initial counseling he received, the evidence of record confirms the applicant was aware of the policy when his retirement was approved in December 2009 and there is no indication he attempted to withdraw his retirement application at the time.  Given the applicant was aware of the policy prior to retirement and absent any evidence suggesting he attempted to withdraw his retirement application at the time, there is an insufficient evidentiary basis to support granting 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 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)                                         AR20110003309



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ABCMR Record of Proceedings (cont)                                         AR20110003309



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