IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20110022139 


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 additional retirement point credit of 3 months and 28 days to provide credit sufficient for him to attain 20 years of qualifying service toward a nonregular retirement.  If this is not granted he requests his records show he qualified for a medical disability retirement from the Army effective at his separation in 1992.

2.  He states the following:

   a.  Prior to his discharge from the Regular Army (RA) in 1992 he was told he would be assigned to the Army National Guard (ARNG) and be allowed to retire.
   
   b.  He could not pass the expiration term of service (ETS) physical to be discharged from the RA.  The attending physician annotated in his records that he should follow up with the Department of Veterans Affairs (VA).  He should have been given some type of disability rating at that time if he wasn't "100 percent whole" to pass the physical.
   
   c.  He went to the VA hospital as instructed by the U.S. Army physician for follow-up treatment and at the same time, he was transferred to the Individual Ready Reserve (IRR).  He was told that he wouldn't be gaining any [retirement] points but only time to make up for the time needed to achieve 20 years.  He was agreeable to that since he already had 4,860 points for retirement from the ARNG.  He remained in the IRR until his discharge on 21 May 1995.
   
   d.  Several years later he received a letter from the U.S. Army Retired Reserve Personnel Command (correctly known as the U.S. Army Reserve Personnel Center (ARPERCEN) at the time) asking him whether he wanted to receive his final discharge or be placed in the Retired Reserve.  He selected the Retired Reserve.  ARPERCEN responded with a letter stating he would be placed in the Retired Reserve.  He believed that being placed in the Retired Reserve meant that he had obtained the necessary 20 qualifying years.

   e.  Two years prior to his 60th birthday, he was sent a retirement package from ARPERCEN.  He completed the application and returned it with the required documents.  He received a letter in return stating that he did not qualify for retirement as he only had 19 years, 8 months, and 7 days of total service for retirement.  

   f.  He did not want to leave the Army but was forced out by government downsizing.  He feels he was wrongfully separated, so he was not able to receive his full 20 years of active duty service.

   g.  When he was discharged he was given $16,053.84 for involuntary separation from the Army due to Congressionally-mandated downsizing.  When he received his disability compensation from the VA he had to pay back $16,053.84 from his VA disability payments.  He has followed the proper channels by submitting his service information to his elected representative in which he petitioned the Army to waive the 3 months and 23 days he needed for retirement eligibility.  The U.S. Army Human Resources Command at Fort Knox, KY wrote back and recommended that he apply to the Army Review Boards Agency.

   h.  He further states he is willing to return to active duty for the 3 months and 23 days in a temporary duty status at Fort Carson where he could help cook in the Garrison Dining Facility since he is a prior 94B (Cook).
 
3.  He provides an Army Reserve Personnel Center (ARPC) Form 249-E (Chronological Statement of Retirement Points). 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (USC), 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.  His military records show he enlisted in the Regular Army on 20 July 1967.  He was awarded the military occupational specialty of 36K (Wireman).

3.  He reenlisted in the Regular Army on 20 March 1968 for a period of 4 years.

4.  He was released from active duty on 23 March 1972 and transferred to the U.S. Army Reserve (USAR) Control Group (Standby) to complete his remaining Reserve obligation.  He was credited with 4 years and 8 months of active service.

5.  On 30 March 1974, he enlisted again in the RA for a period of 3 years.

6.  He was honorably discharged from active duty on 6 April 1977.  His DD Form 214 (Report of Separation from Active Duty) for this period of service shows he was credited with a total of 7 years, 8 months, and 5 days of active service.  He was also credited with 1 year and 4 months of inactive service.

7.  A National Guard Bureau (NGB) Form 22 (NGB Report of Separation and Record of Service) shows he enlisted in the ARNG on 21 February 1980.

8.  He was separated on 24 January 1989 in the rank/pay grade of staff sergeant/E-6.  This form shows he was in the inactive National Guard from 1 June 1987 through 18 March 1988.

9.  On 3 February 1989, he enlisted again in the RA for a period of 4 years.

10.  Headquarters, I Corps and Fort Lewis Orders 67-149, dated 19 May 1992, show he was approved for a Special Separation Benefit (SSB) payment. 

11.  On 8 June 1992, he was honorably discharged from active duty, in the rank/grade of specialist/E-4 due to ETS.  His DD Form 214 for this period of service shows he was credited with 3 years, 4 months, and 5 days of net active service this period with a total of 11 years and 10 days of active service.  Item 18 (Remarks) of this form includes the remark "separation payment $16,053.84."  His DD Form 214 shows his date of birth as 12 February 1949.

12.  A DD Form 4/1-E (Enlistment/Reenlistment Document) shows that on 9 June 1992 he enlisted for the IRR prior service enlistment option for a period of 3 years in pay grade E-4.

13.  ARPERCEN Orders C-07-637505, dated 29 July 1996, released him from the USAR Control Group (Reinforcement) and assigned him to the Retired Reserve.  The reason cited is shown as completion of 20 or more years of Reserve duty effective 29 July 1996.

14.  An NGB Form 23 (ARNG Retirement Points History Statement) prepared on 13 September 2011 shows he had 12 years, 11 months, and 21 days of verified qualifying service for nonregular retirement as of 24 January 1989, upon his separation from the ARNG.  All retirement point line entries on this form are shown as verified based on a "V" entry in the verification status column of the form.

15.  He provided an ARPC Form 249-E, dated 20 October 2011, which shows he had 19 years, 8 months, and 7 days of service qualifying for retirement. 

16.  An ARPC Form 249-E, generated on 17 May 2012, shows he has 18 years, 1 month, and 12 days of service qualifying for retirement.  

17.  His available records contain no medical records and he has provided none.

18.  He reached age 60 on 12 February 2009.

19.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) states that assignment to the Retired Reserve is authorized as listed below.  Eligible Soldiers must request transfer if they-

	a.  Are entitled to receive retired pay from the U.S. armed forces because of prior military service.

	b.  Have completed a total of 20 years of active or inactive service in the U.S. armed forces.
	
	c.  Are medically disqualified for active duty resulting from a service-connected disability.

	d.  Reached the age of 37 and completed a minimum of 8 years of qualifying Federal service.

	e.  Reached the age of 37, completed a minimum of 8 years of qualifying Federal service and served at least 6 months of active duty in time of war or national emergency.

	f.  Completed 10 or more years of active Federal commissioned service.

	g.  Are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed.

20.  Army Regulation 140-111 (U.S. Army Reserve Reenlistment Program) states a Soldier assigned to the Selected or Ready Reserve or the Standby Reserve (Active Status List) is serving in an active status.

   a.  The retention of an enlisted Soldier selected for involuntary separation (other than for physical disability or for cause) or denied reenlistment upon expiration of term of enlistment (other than for physical disability or for cause) in an active status after completion of 18 or more years but less than 20 years of qualifying service for retired pay is required by law (Title 10, USC, section 1176(b)) unless the Soldier consents to removal.  This is commonly known as "sanctuary."
   
   b.  Soldiers may be extended for retention in an active status to complete 20 years of qualifying service for retired pay, but not beyond age 60 unless approved by CG, ARPERCEN per table 4–2, note 2.

21.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing granting "retired pay" to Soldiers and former Reserve Component Soldiers.

   a.  Paragraph 2-8 describes qualifying service as service performed in an active status in a Reserve Component or in active Federal service.  After 30 June 1949, a Reserve member must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service.

	b.  Paragraph 2-9 states that active status in the Ready Reserve, the Standby Reserve, and the Active National Guard after 30 June 1949, but insufficient retirement points earned for such service to be credited as qualifying service is not creditable as qualifying service.  Time in the Retired Reserve is not creditable as qualifying service.
22.  Title 10, USC, section 12731 states, except as provided in subsection (c), a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person:

   a.  is at least 60 years of age;
   
   b.  has performed at least 20 years of service computed under section 12732 of this title;
   
   c.  in the case of a person who completed the service requirements of paragraph (2) before April 25, 2005, performed the last 6 years of qualifying service while a member of any category named in section 12732(a)(1) of this title, but not while a member of a regular component, except that in the case of a person who completed the service requirements of paragraph (2) before
October 5, 1994, the number of years of such qualifying service under this paragraph shall be eight; and

	d.  is not entitled, under any other provision of law, to retired pay from an armed force.

23.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System according to the provisions of Title 10, USC, chapter 61, and Department of Defense Directive 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It states that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

24.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

25.  Title 10, USC, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay.

26.  The DOD Financial Management Regulation, Chapter 4, defines the SSB as a lump sum payment to certain members who voluntarily separated before 1 October 1995.

   a.  The SSB was based on years of service for pay purposes and grade or rank at date of separation.
   
   b.  If a member who has received an SSB payment becomes eligible for retired pay, recoup from the member the gross amount of SSB received, as shown on the member’s DD Form 214.
   
   c.  A member who receives SSB and who subsequently becomes eligible for disability compensation from the VA will repay an amount equal to the SSB from the disability compensation.  However, no deduction for SSB shall be made from disability compensation based on service performed after the SSB was received.
   
DISCUSSION AND CONCLUSIONS:

1.  His contentions that prior to his discharge in 1992 he was told he would be assigned to the ARNG and be allowed to retire and that he feels he was wrongly separated so he could not receive his full 20 years of active duty service are noted.  However, there is no evidence to support these contentions.  At the time of his last separation from active duty he had completed 11 years and 10 days of active service.  The Army does not assure a Soldier with less than 18 years of active service a military retirement.

2.  He contends he believed his being transferred to the Retired Reserve meant that he had the necessary 20 years for a nonregular retirement.  Based on the calculations below and the two ARPC Forms 249-E listed above in paragraphs 15-16 it appears that there was inconclusive data regarding his service qualifying for retirement.  Further, a review of his Official Military Personnel File failed to reveal with certainty how much service qualifying for retirement he had at the time of his release from the IRR and assignment to the Retired Reserve. 
 
NBG Form 23 Total
12
11
21
Last Period of Active Duty (RA)
03
04
05
Total Service Qualifying for Nonregular Retirement 
16
03
26
3.  Based on the qualifying years of service for retirement through 24 January 1989 shown on his NGB Form 23 and his last period of net active service (see table above) his qualifying service for retirement is 16 years, 3 months, and 26 days.  This would have been insufficient service to protect him under "sanctuary."  

4.  It is unclear why ARPERCEN cited the reason as completion of 20 or more years of Reserve duty when it published orders releasing him from the USAR Control Group (Reinforcement) and assigning him to the Retired Reserve, absent a 20-Year Letter or other evidence he had completed 20 or more years of qualifying service for retirement at age 60.

   a.  Further, even if he had completed 20 or more years of qualifying service for retirement at age 60 or if he had more than 18 years of service qualifying for retirement as shown on the ARPC Form 249-E, generated on 17 May 2012, and been retained until the completion of 20 qualifying years of service, he would not have been eligible for a nonregular retirement because he would not have met the requirement of the last 6 years of qualifying service having to have been performed while a member of a Reserve component.
   
   b.  Further, the evidence shows that from the time he was transferred to the USAR Control Group (Reinforcement) in June 1992 and until the time he was released and reassigned to the Retired Reserve in July 1996, he failed to earn the 50 points necessary during each retirement year period to be credited with any qualifying years of service for a nonregular retirement.
   
   c.  Further, there is no basis for ordering him to active duty as he asks for the purpose of accruing additional retirement points.
   
5.  In view of the foregoing, there is an insufficient basis for which to have his record corrected to show he had 20 qualifying years of service for nonregular retirement.  To do so would be a disservice to those Soldiers who served the requisite period of service to be eligible for a nonregular retirement at age 60.

6.  His DD Form 214 shows he received a separation payment of $16,053.84.  Evidence indicates this was a voluntary separation.  Also, the fact that this separation payment may have been recouped upon his subsequently becoming eligible for disability compensation from the VA is immaterial in this case.  As such, it appears he was properly compensated for his years of service.

7.  He contends that he could not pass the ETS physical to be discharged from the Army.  The Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, it can rate a condition only to the extent that the condition limits the performance of duty.  There is no evidence in his available military records to indicate he should have been considered by an MEB for any medical condition.  Absent an MEB referral to a PEB for an unfitting determination/rating, there is no basis for a disability rating leading to a disability separation.  Only conditions found unfitting by a PEB are authorized for compensation.  As such, his separation for ETS as shown on his latest DD Form 214 is correct as currently constituted.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110022139



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ABCMR Record of Proceedings (cont)                                         AR20110022139



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