IN THE CASE OF:	  

		BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110014423 


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, non-Regular retirement at age 60.

2.  The applicant states he was wounded in Vietnam 2 months prior to completing his tour and he was sent back to the United States.  He started receiving 100-percent disability compensation (from the Department of Veterans Affairs) in 2002 and he was told he could not remain in the Army National Guard (ARNG) and draw disability at the same time.  So, he came out of the ARNG.  He was recently told that since he had 19 years and 10 months of qualifying years of service, he could still retire from the ARNG.

3.  The applicant provides:

* Honorable Discharge Certificate
* National Guard Bureau (NGB) Form 23B (ARNG Retirement Points History Statement)
* NGB Form 22 (Report of Separation and Record of Service)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 1 July 1945.

2.  He initially enlisted in the Regular Army on 28 September 1965.  He was released from active duty on 22 July 1968 and he was transferred to the U.S. Army Reserve (USAR) Control Group to complete his remaining service obligation.  He completed 2 years, 9 months, and 25 days of active service.

3.  He enlisted in the Alabama ARNG (ALARNG) on 2 August 1984.  He served through multiple extensions or reenlistments in a variety of assignments and he attained the rank/grade of staff sergeant/E-6.

4.  He was honorably discharged from the ARNG on 2 April 2002 and he was transferred to the USAR Control Group (Reinforcement – also known as the Individual Ready Reserve (IRR)).  His NGB Form 22 listed the authority for his discharge as paragraph 8-27h of National Guard Regulation 600-200 (Enlisted Personnel Management).  Paragraph 8-27h of National Guard Regulation 
600-200, dated 1 March 1997, refers to "Request of the Soldier not to be discharged from the Reserve of the Army status in order to become a member of the Army Reserve."  His NGB Form 22 also shows his terminal date of Reserve obligation/military service obligation as "1 August 2003."

5.  His NGB Form 23B, dated 21 October 2005, shows he completed 18 years, 9 months, and 25 days of qualifying service toward non-Regular retirement.  However, an adjusted and current NGB Form 23B, dated 28 March 2012, shows he completed 19 years, 9 months, and 25 days of qualifying service toward non-Regular retirement.  A breakdown of his qualifying retirement points is as follows:

From
To
Status
Qualifying For Retirement
Total Points
20010802
20020402
USAR
00
10
20000802
20010801
USAR
01
54
19990802
20000801
USAR
01 
78
19980802
19990801
USAR
01
59
19970802
19980801
USAR
01
85
19960802
19970801
USAR
01
78
19950802
19960801
USAR
01
90
19940802
19950801
USAR
01
75
19930802
19940801
USAR
01 
56
19920802
19930801
USAR
01
75
19910802
19920801
USAR
01
75
19900802
19910801
USAR
01
75
19890802
19900801
USAR
01
73
19880802
19890801
USAR
01
75
19870802
19880801
USAR
01
105
19860802
19870801
USAR
01 
90
19850802
19860801
USAR
01
76
19840802
19850802
USAR
01
76
19720928
19840801
BREAK


19650929
19680722
RA
02 09 25

TOTAL


19  09  25 
2397
6.  There is no indication in his records that he performed any inactive or active service while in the IRR between the date he was released from the ARNG on 2 April 2002 and the date shown on his NGB Form 22 as his terminal date of Reserve obligation/military service obligation of 1 August 2003.

7.  There is no indication in his records that he was discharged from the USAR or transferred to the Retired Reserve on 1 August 2003.

8.  His Army Reserve Personnel Command Form 249-2-E (Chronological Statement of Retirement Points) is not available.

9.  An advisory opinion was obtained from NGB on 9 March 2012 in the processing of this case.  The official recommended approval and stated that since the applicant was covered under the 18-year sanctuary guidance, he should not have been discharged from the ALARNG without approval from the Secretary of the Army.  A recommended course of action would be to shift or reallocate retirement points from his inactive duty training category to allow him to have 20 years of qualifying service and the issuance of a Notification of Eligibility for Retired Pay at Age 60.

10.  The applicant was provided with a copy of this advisory opinion, but he did not respond.

11.  National Guard Regulation 600-200 governs procedures for enlisted personnel of the ARNG.  Chapter 8 provides for the separation of enlisted personnel of the USAR and ARNG.  Paragraph 8-2 establishes that the authority to discharge Soldiers from the Reserve of the Army rests with the Secretary of the Army.  The authority for discharging Soldiers from a State ARNG is the Adjutant General of the State with the exception of those Soldiers who are within 2 years of completing service required for retired pay.  In those cases, the Chief, NGB, is the authority for discharge.  Paragraph 8-27(h) provides that individuals can be discharged from the ARNG for the purpose of enlisting in the USAR.

12.  Army Regulation 135-178 (Enlisted Administrative Separations) establishes policies, standards, and procedures governing the administrative separation of enlisted Soldiers of the ARNG and USAR.  Paragraph 1-11 governs the authority to order the separation of Soldiers having more than 18 but fewer than 20 years of qualifying service for retired pay.  It states a Soldier having completed 18 but fewer than 20 years of qualifying service for retired pay under the provisions of 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 (HQDA), for consideration.  Cases involving voluntary separation at the request of the Soldier need not be referred to HQDA for approval.

13.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve components Soldiers.  Retired Pay is defined as pay granted Soldiers and former Reserve Components Soldiers under Title 10, U.S. Code, section 1331 (now chapter 1223), after completion of 20 or more years of qualifying service and upon attaining age 60.  It also states an individual does not need to have a military status at the time of application for retired pay to be eligible for retired pay, but must have:  (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and (3) at the time the applicant was discharged, served the last 8 years of his or her qualifying service as a Reserve Component (RC) Soldier (reduced to 6 years in 2002 and to 0 years in 2005).  This regulation also specifies, in part, that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he or she completes the service.

14.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 7 relates to the removal of Soldiers from an active status and states that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.

15.  Title 10, U.S. Code, sections 12731-12737, authorize retired pay for Reserve Component military service.  To be eligible for retired pay under this law, a reserve Soldier upon attaining age 60 must have completed a minimum of 20 qualifying years.  After 1 July 1949, a qualifying year is defined as a year in which the reserve Soldier must have earned at least 50 retirement points.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served on active duty from 28 September 1965 to 22 July 1968, a period of 2 years, 9 months, and 25 days of active service.  He was then transferred to the IRR where he accrued membership points but did not participate in any unit training.  He was discharged from the USAR on 27 September 1972.

2.  After a break in service from September 1972 to August 1984, he enlisted in the ARNG.  He served through multiple extensions or reenlistments and actively participated in unit training, accruing in excess of 50 qualifying points each year from August 1984 through August 2001.

3.  He was discharged from the ARNG on 2 April 2002 after having completed 19 years, 9 months, and 25 days of qualifying service – although it appears this calculation was not made until much later.  His terminal date of Reserve/military service obligation is shown as 1 August 2003.

4.  The applicant's separation contains multiple errors that require attention:

	a.  A Soldier having completed 18 but fewer than 20 years of qualifying service for retired pay could not be involuntarily separated without the approval of the Secretary of the Army or his designated representative.  In this case, it is unclear why the ALARNG discharged him from the ARNG knowing they did not have the authority to do so.  Although the reason indicated on the NGB Form 22 does not relate to a medical discharge or an involuntary discharge, having completed 18 years, 9 months, and 25 days of qualifying service at the time, it is reasonable to presume he had he not been discharged from the ARNG, he would have continued to serve and accrue sufficient retirement points toward non-Regular retirement.

	b.  His NGB Form 22 listed his the terminal date of Reserve obligation/military service obligation as "1 August 2003."  However, there is no evidence of record to show he was ever discharged from the USAR or transferred to the Retired Reserve on that date.  Additionally, his chronological statement of retirement points terminates on the date he was released from the ARNG.  It does not account for his service in the IRR through 1 August 2003 despite the absence of evidence that he earned any qualifying points (aside from membership points) from the date he was released from the ARNG to the date his military service obligation should have terminated.

5.  Therefore, as a matter of equity, his records should be corrected by taking a series of steps, including:

	a.  adjustment of his chronological statement of retirement points to include his IRR service through 1 August 2003 and, as a matter of equity, reallocating sufficient retirement points that would show he completed 20 qualifying years of service toward non-Regular retirement;

	b.  issuance orders transferring him to the Retired Reserve effective 1 August 2003; and

	c.  issuance of orders placing him on the Retired List effective 1 July 2005 with retroactive entitlement to retired pay.

6.  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 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 the applicant may have.

BOARD VOTE:

____x___  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 records of the individual concerned be corrected by:

* adjusting his chronological statement of retirement points to show his service terminated on 1 August 2003
* awarding him 15 membership points for retirement years 2 August 2001 through 1 August 2002 and 2 August 2002 through 1 August 2003
* reallocating 35 IDT retirement points from any of his good years to retirement year 2 August 2001 through 21 August 2002 and paying him any pay and allowances due as a result of this correction
* adjusting his remaining retirement years accordingly, thereby correcting his chronological statement of retirement points to show he completed 20 years of qualifying service for non-Regular retirement
* showing he was transferred the Retired Reserve effective 1 August 2003
* 
showing he applied for retired pay effective 1 July 2005 and retroactively paying him all retired pay as a result of this correction



      ____________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)                                         AR20110014423



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ABCMR Record of Proceedings (cont)                                         AR20110014423



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