IN THE CASE OF:	  

		BOARD DATE:	  16 June 2011

		DOCKET NUMBER:  AR20110004044


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, she be granted sanctuary.

2.  The applicant states, in effect, all of her active duty service is not accounted for due to an error in her service records.  She served in the Regular Army (RA) without a break in service from 21 August 1973 through 11 August 1986. However, her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows service from 12 February 1980 through 11 August 1986.  This error is keeping her from achieving sanctuary.

3.  The applicant provides:

* DD Form 214 with an effective date of 11 August 1986
* ARPC Form 249-E (Chronological Statement of Retirement Points), dated 9 June 2010
* Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter)
* DD Forms 4 (Enlistment Contract)
* Orders
* Sanctuary Request Checklist
* Enlisted Record Brief
* DA Form 4187 (Personnel Request) for sanctuary



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the RA on 21 August 1973 and served continuously until she was released from active duty on 11 August 1986.  Her DD Form 214 issued on 11 August 1986 is incorrect.  It shows the following entries in Item 12 (Record of Service):

12. Record of Service
Years
Mons
Days
a. Date Entered AD This Period
1980
02
12
b. Separation Date This Period
1986
08
11
c. Net Active Service This Period
   06
06
00
d. Total Prior Active Service
   06
05
21
2.  Although the applicant's DD Form 214 properly accounted for her 12 years, 11 months, and 21 days of creditable active Federal service, Item 12a does not reflect the correct entry date.  On 29 March 2011, a DD Form 215 (Correction to DD Form 214) was issued.  This document corrected the 11 August 1986 
DD Form 214 as follows:

12. Record of Service
Years
Mons
Days
a. Date Entered AD This Period
1973
08
21
b. Separation Date This Period
1986
08
11
c. Net Active Service This Period
   12
11
21
d. Total Prior Active Service
   00
00
00
3.  Following her RA service, the applicant entered the U.S. Army Reserve (USAR) and served until she was transferred to the Retired Reserve on 5 April 2011.  During her USAR service, she served on active duty for various periods of time.  Her last period of active service was from 22 January 2007 through 5 April 2011.  Item 12 of her DD Form 214 reflects:

12. Record of Service
Years
Mons
Days
a. Date Entered AD This Period
2007
01
22
b. Separation Date This Period
2011
04
05
c. Net Active Service This Period
   04
02
14
d. Total Prior Active Service
   12
11
21
4.  When added together, her total creditable active Federal service reflects 
17 years, 2 months, and 5 days.



5.  The applicant's ARPC Form 249-E, dated 6 June 2011, shows additional periods of active service totaling 414 days (1 year, 1 month, 19 days) for which she received no DD Form 214.  When added to her other active service as reflected on her DD Forms 214, she has 18 years, 3 months, and 24 days of creditable active Federal service.

6.  The applicant's DD Form 214 with an effective date of 5 April 2011 shows she was released from active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of "disability, other."  It also shows she elected Reserve retirement in lieu of severance pay.  She received her Twenty Year Letter, dated 16 September 2010.

7.  Sanctuary is a term used to describe the period in a Soldier's career where they have enough creditable service to be within 2 years of retirement eligibility, whether active or Reserve, officer or enlisted.

	a.  There are two types of sanctuary, active duty and Reserve (inactive duty).  Soldiers cannot always mix Reserve and active duty service for sanctuary reasons.  For example, a Soldier cannot enter sanctuary for a regular retirement if he/she has 15 years of inactive service and 3 years of active service, but would enter sanctuary for a non-regular retirement.  To enter sanctuary for a regular retirement, a Soldier must have 18 years of active service.

	b.  Sanctuary means the Soldier, who is within 2 years of retirement eligibility, may not be involuntarily separated until retirement eligibility is reached.  Only the service secretary may approve exceptions.

	c.  Sanctuary Soldiers must be able to perform their assigned duties, thus Soldiers with disabilities do not qualify for sanctuary.

8.  Title 10 US Code §1176 provides:

A Reserve enlisted member serving in an active status who is selected to be involuntarily separated (other than for physical disability or for cause), or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause), and who on the date on which the member is to be discharged or transferred from an active status is entitled to be credited with at least 18 but less than 20 years of service computed under section 12732 of this title, may not be discharged, denied reenlistment, or transferred from an active status without the member’s consent before the earlier of the following:
   a.  If as of the date on which the member is to be discharged or transferred from an active status the member has at least 18, but less than 19, years of service computed under section 12732 of this title—

       (1)  the date on which the member is entitled to be credited with 20 years of service computed under section 12732 of this title; or

       (2)  the third anniversary of the date on which the member would otherwise be discharged or transferred from an active status.

   b.  If as of the date on which the member is to be discharged or transferred from an active status the member has at least 19, but less than 20, years of service computed under section 12732 of this title—

       (1)  the date on which the member is entitled to be credited with 20 years of service computed under section 12732 of this title; or

       (2)  the second anniversary of the date on which the member would otherwise be discharged or transferred from an active status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, sanctuary in order to reach a 20-year active duty retirement.

2.  The applicant's DD Forms 214 with the attached DD Form 215 are correct as written.  Two DD Forms 214 show she completed a total of 17 years, 2 months, and 5 days of creditable active Federal service.  The applicant also has 414 days of other creditable active service as reflected on her ARPC Form 249-E.  Her combined active service of 18 years, 3 months, and 24 days exceeds the 18-year threshold.

3.  However, the applicant was separated from active duty on 5 April 2011 by reason of a physical disability.  Her DD Form 214 shows she rejected severance pay in lieu of non-regular retirement at age 60.

4.  In accordance with 10 USC §1176, Soldiers separated for physical disability are not eligible for sanctuary.



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)                                         AR20110004044



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ABCMR Record of Proceedings (cont)                                         AR20110004044



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