IN THE CASE OF:	  

		BOARD DATE:	  21 June 2012

		DOCKET NUMBER:  AR20110016675 


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:

The applicant defers his request, statement, and evidence to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records to show he:

	a.  is entitled to U.S. Army Reserve (USAR) Individual Mobilization Augmentee (IMA) credit sufficient to meet the litmus test for a satisfactory year for drilling years 2001 through 2002 and 2005 through 2006;

	b.  received 18 qualifying years of creditable service for retirement prior to discharge in June 2008 and was retained in the USAR until reaching retirement eligibility;

	c.  was not discharged in June 2008 and continued to serve in a creditable fashion until achieving eligibility for a military retirement predicated upon having served 20 "good" years of service and entitlement to full benefits; and

	d.  is currently and retroactively entitled to appropriate retirement credits, pay and allowances, and/or benefits as he would normally be due during this period.

2.  Counsel also requests that:

	a.  he and the applicant be provided a copy of any review and/or comments by any entity that officially reviews or considers this case; and

	b.  a copy of any summary of the applicant's case prepared by any staff member of the Army Board for Correction of Military Records (ABCMR) be sent to him to allow a response and comment prior to the final determination by the ABCMR.

3.  Counsel states the applicant:

	a.  served with pride for 20-plus years as a member of the USAR Chaplain Corps and he served honorably and well during the entire period;

	b.  continued to serve honorably after being promoted to lieutenant colonel while in an Individual Ready Reserve (IRR) and IMA capacity until June 2008;

	c.  was unceremoniously separated from Reserve service predicated upon a belief that he had not satisfactorily achieved the requisite annual credits which would have placed him in the so-called "18-year safety zone";

	d.  would have reached this safe haven and would have been entitled to continue to serve until he reached 20 years if he had been given proper credit for his various creditable service;

	e.  did not receive full credit for activities he performed as a member of the USAR, which would have given him another good year of creditable service toward retirement;

	f.  made attempts to update and correct his record, but they have gone unheeded;

	g.  made several attempts to have his mandatory removal date (MRD) extended;

	h.  has 2 additional years of service that meet the litmus test for satisfactory years of service creditable for retirement; and

	i.  petitions for relief on the grounds that the process leading to his separation action from the USAR is replete with error and is patently unjust.

4.  Counsel provides the following evidence in triplicate form:

* addendum to the application for records correction, dated 24 September 2010
* self-authored statement from the applicant, dated 10 September 2010
* letter to ABCMR, dated 2 August 2011
* Army Review Boards Agency letter, dated 28 January 2011
* U.S. Army Human Resources Command (AHRC) letters, dated 
16 November 2007, 14 February 2011, and 7 July 2011
* Honorable Discharge Certificate, dated 12 June 2008
* two USAR Personnel Command (ARPC) Forms 249-E (Chronological Statement of Retirement Points), dated 5 May 2008
* AHRC Reserve Record retirement points detail printout, dated 20 October 2006
* email correspondence, dated 17 August 2008 and 15 November 2006
* AHRC memoranda, dated 21 May and 21 August 2007
* DA Forms 1380 (Record of Individual Performance of Reserve Duty Training)
* letter of thanks to Master Sergeant (MSG) D____ C. S____, dated 29 June 2007
* USAR Personnel Center attachment orders, dated 25 August 1993
* request for extension of MRD, dated 25 April 2006
* AHRC Orders H-01-800007, dated 7 January 2008
* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552)
* ARPC Form 249-E, dated 7 July 2011
* certified mail receipt, dated 16 February 2011

5.  Counsel also provides:

* Reverse of ARPC Form 249-E (Detail Point Listing for Previous Retirement Year)
* DD Form 2656 (Data for Payment of Retired Personnel), dated 23 May 2011
* DD Form 108 (Application for Retired Pay Benefits)
* Standard Form 1199A (Direct Deposit Sign-Up Form)

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.  Counsel requests that counsel and the applicant receive a copy of any review and/or comments by any entity that officially reviews or considers this case.  Title 10, U.S. Code, section 1556, requires that applicants requesting correction of records receive a copy of all correspondence and communications provided to the Board or its staff from outside the agency that pertain to the applicant's case or have a material effect on the applicant's case.  The Army Review Boards Agency and the Board strictly adhere to this legal requirement.

3.  Counsel also requests that a copy of any summary of the applicant's case prepared by any staff member of the ABCMR be sent to him to allow response and comment prior to the final determination by the ABCMR.  It is not the practice of the Board to provide advanced copies of draft decisions.  The applicant and his counsel will be notified of the decision made in his case through the normal process and procedures.  Therefore, no further reference will be made to these portions of the request.

4.  On 21 October 1987, the applicant accepted an appointment as a Reserve commissioned officer for an indefinite term.  He was appointed as a chaplain in the rank of first lieutenant and promoted to captain effective 20 October 1991.  He was promoted to major effective 16 July 1998.

5.  Counsel submits the applicant's unsigned DA Forms 1380 (with the exception of one for 26 April 1996 and 17 May 1996 signed by MSG D____ C. S____) which show the following inactive duty training (IDT) service he performed with the 6386th Reinforcement Training Unit by date with number of hours and associated retirement points:

DATE	HOURS	POINTS	DUTIES

26 April 1996	4	1	visiting/meeting with/distributing 
			flyers to U.S. Army 
			noncommissioned officer 
			recruiters
17 May 1996	4	1	visiting/meeting with/distributing 
			flyers to U.S. Army 
			noncommissioned officer 
			recruiters
21 October 2001	3	1	counseled veterans group 
			members
26 October 2001	3	1	counseled high school students 
			on chaplaincy
28 October 2001	3	1	counseled veterans group 
			members
31 October 2001	5	2 [sic]	counseled veterans' children at 
			fall festival
4 November 2001	3	1	counseled veterans group 
			members
7 November 2001	3	1	counseled future U.S. Army 
			Soldiers
10 November 2001	2	1	assisted in prayer vigil for 
			veterans
11 November 2001	3	1	assisted in 2001 Veterans Day 
			service ceremony
18 November 2001	3	1	Bible study with veterans group
25 November 2001	3	1	Bible study with veterans group
1 December 2001	4	2 [sic]	Christmas Bible study with 
			veterans
2 December 2001	3	1	counseling sessions with 
			veterans group members
9 December 2001	3	1	Bible study with veterans group
16 December 2001	3	1	counseled veterans group
21 December 2001	4	2 [sic]	veterans' Christmas 
			commemoration
23 December 2001	3	1	Bible study with veterans group
30 December 2001	3	1	Bible study for veterans group

6.  On 20 May 2005, the applicant was voluntarily released from his USAR assignment and assigned to the USAR Control Group (Reinforcement).

7.  The interactive Personnel Electronic Records Management System (iPERMS) AHRC Integrated Web Services Soldier Management System shows he was transferred to the IRR.  This entry was made on 20 May 2005.

8.  A welcome letter was generated by iPERMS based on his assignment to the IRR on 19 June 2005.

9.  He was promoted to lieutenant colonel effective 10 January 2006.  On 18 October 2006, the applicant completed an AHRC Form 4145 (Election of Options – Military Service Obligation) electing to remain a member of the IRR.

10.  On 21 May 2007 and 21 August 2007, Colonel D____ A.B. L____, who identified himself as the executive officer of the 6386th RTU (Logistics), notified AHRC that the applicant performed the stated duties on the attached DA Forms 1380 on 26 April 1996, 17 May 1996, 21-31 October 2001, 
4-25 November 2001, and 1-30 December 2001 that qualified for Reserve retirement points.

11.  On 19 July 2007, the entry "Unable to award retirement points to officer because it doesn't appear he was assigned or attached to the unit listed on the DA Form 1380.  Also the DA Form 1380 was backdated.  Would need additional verification before they can be credited" was made in iPERMS.

12.  On 11 October 2007, the entry "Officer was denied retirement point credit.  Submit DA Forms 1380 for years 1992, 1996, 2001, and 2005.  Also, due to failure to secure attachment orders, retirement points were removed for [retirement years ending] 2006 and 2007" was made in iPERMS.

13.  20 October 2007, the entry "[service member] is not on orders for points only, so points will not be granted" was made in iPERMS.

14.  On 5 May 2008, the applicant was issued a Chronological Statement of Retirement Points which shows he had 16 qualifying years of creditable service for retirement purposes.  This statement shows he earned less than 50 points for the following retirement years:

* 21 October 1991-20 October 1992 (35 points)
* 21 October 2001-20 October 2002 (36 points)
* 21 October 2004-20 October 2005 (23 points)
* 21 October 2005-20 October 2006 (30 points)

15.  On 12 June 2008, the applicant was honorably discharged from the USAR.

16.  Counsel submits email to the applicant from an individual who identified himself as Major A____ R. G____, dated 15 November 2006.  The email informed the applicant that he earned a total of 24 retirement points for the retirement year October 2005 through October 2006.  The applicant was advised that the total points listed did not include basic membership points.

17.  The 15 November 2006 email also contains a comment from W____ W____, dated 17 August 2008, who identified Major A____ R. G____ as the "6202nd [sic] (Pasadena) unit commanding officer" and stated, "Unfortunately, they took those points away for that year.  Doesn't seem quite right does it?"

18.  Counsel submits the applicant's self-authored statement, dated 10 September 2010, in which he asserts he proudly served as a member of the USAR Chaplain Corps for more than 20 years.  He states he managed to achieve 18 satisfactory years prior to being discharged and this satisfactory service placed him in a "sanctuary zone."  As a result of poor bookkeeping, his official USAR records reflect only 17 years of satisfactory service.  He states he was discharged from the Reserve in June 2008 predicated on the erroneous records.  He made repeated attempts to be credited with the "good" years of service to which he is entitled.  He states he performed duties/actions which entitled him to additional credit for the years 2001-2002, 2004-2005, and 2005-2006.

19.  On 23 May 2011, the applicant applied to AHRC for retired pay benefits.  On 7 July 2011, he was informed that a Reserve Soldier or former Reserve Soldier must have completed a minimum of 20 qualifying years of service and the last 8 years must have been in a Reserve Component.  He was advised that an audit of his military records showed he completed 17 years, 0 months, and 0 days of qualifying service for retirement.  He was provided a Chronological Statement of Retirement Points which showed this information.  This statement also showed he earned less than 50 retirement points for the following years:

* 21 October 1991-20 October 1992 (35 points)
* 21 October 2004-20 October 2005 (23 points)
* 21 October 2005-20 October 2006 (30 points)
* 21 October 2007-12 June 2008 (13 points)

20.  The applicant was credited with 56 retirement points (1 year of qualifying service) for the retirement year 21 October 2001-20 October 2002.  He was also credited with 50 retirement points (1 year of qualifying service) for the retirement year 21 October 1995-20 October 1996 (the years for which he submits DA Forms 1380 showing the extra duties he performed).

21.  Army Regulation 140-1 (Army Reserve Mission, Organization, and Training) provides policy guidance on the mission, organization, and training of the USAR. 
This regulation states, in part, that USAR RTU's are organized to train non-unit USAR Soldiers.  Personnel attached to these units take part in volunteer 
non-paid training.  They receive retirement point credit only.

22.  Army Regulation 140-1 further specifies that a unit training assembly is an authorized and scheduled training assembly of at least 4 hours, including roll call and rest periods.  Two-hour training assemblies are authorized for RTU's and IMA detachments in a non-pay status.  They must be at least 2 hours long; roll call and rest periods are excluded.  Units allowed 2-hour training assemblies will not combine two or more 2-hour training assemblies for multiple point credit.

23.  Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  This regulation provides that assignment, reassignment, transfer, and attachment will be announced in written orders.

24.  Title 10, U.S. Code, sections 12731 through 12739, authorize retired pay for Reserve Component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earns 50 retirement points or more.

25.  Title 10, U.S. Code, sections 1331 through 1337, in effect at the time, provided that a non-Regular service member is entitled to retired pay upon application if the person is at least 60 years of age and has performed at least 20 years of qualifying service, of which the last 8 years of qualifying service were performed while a member of a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's and counsel's contentions have been noted and the supporting evidence has been considered.

2.  There is no evidence in the available record and the applicant and counsel have not submitted any evidence showing the applicant completed more than the 17 years of qualifying service for which he has already been credited.

3.  The information in iPERMS shows that retirement points were unable to be awarded to the applicant because he was not assigned or attached on orders in a points-only status to the unit listed on the DA Forms 1380 that were provided, which he should have been to be credited with the additional IDT retirement points.  The DA Forms 1380 were unsigned and backdated.  The applicant was advised that he needed additional verification before additional points could be credited.  To date, he has not submitted proper verification of his assignment to AHRC or to this Board.

4.  In the applicant's self-authored statement, he contended that he should have received additional retirement point credit for the 2001-2002, 2004-2005, and 2005-2006 retirement years.  However:

* 21 October 2001-20 October 2002 already shows 56 points (28 IDT, 15 membership, and 13 active duty), a qualifying year
* 21 October 2004-20 October 2005 shows 23 points (8 IDT and 15 membership), and he provides no evidence showing he earned additional points
* even accepting the email from Major A____ R. G____ wherein he states the applicant earned a total of 24 retirement points for the retirement year 21 October 2005-20 October 2006, not including membership points, 24 plus 15 only equals 39 points and still is not a qualifying retirement year

5.  By law, the applicant was required to complete 20 years of qualifying service for non-Regular retired pay at age 60.  A qualifying year is one in which a Reserve Soldier earns 50 retirement points or more and the last 8 years of qualifying service must have been performed as a member of a Reserve Component.  Regrettably, the applicant was not eligible for retired pay at age 60.

6.  The available evidence shows the applicant was credited with 17 years of qualifying service, which includes consideration of the service shown on the DA Forms 1380 submitted by his counsel.  He did not attain the 18 years of qualifying service which would have been required to place him in a sanctuary status.

7.  Counsel has not shown error or injustice in the actions taken by the Army in this case.  Based on the available evidence, the applicant is not entitled to additional retirement point credit, retroactive pay and allowances, or non-Regular retired pay with full benefits.

8.  In view of the foregoing, counsel's request should be denied.

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)                                         AR20110016675



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ABCMR Record of Proceedings (cont)                                         AR20110016675



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