IN THE CASE OF:	  

		BOARD DATE:	        5 March 2009

		DOCKET NUMBER:  AR20080016245 


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, revocation of the orders transferring him to the Retired Reserve and reinstatement in the Army National Guard of the United States (ARNGUS) and Army National Guard of Puerto Rico (PRARNG).

2.  The applicant states, in effect, he had completed more than 18 years of service on 13 July 2007 when he was wrongly separated from the Army National Guard (ARNG) following initiation of a line of duty investigation.

     a.  The applicant states the authority for involuntary separation with 18 years or more, but less than 20 years of qualifying service is the Secretary of the Army per National Guard Regulation (NGR) 600-200 (ARNG Enlisted Personnel Management), paragraph 8-2d. 

     b.  The applicant states the orders that discharged him from the ARNG cited NGR 600-200, paragraph 8-39a, as the authority.

     c.  The applicant states that Army Regulation 135-178 (Enlisted Administrative Separations), paragraph 1-110 (sic) and NGR 600-200, paragraph 8-43, are the cites for the criteria that governed his status and should have been utilized in his situation.

3.  The applicant provides copies of Headquarters, PRARNG, Joint Forces Headquarters, San Juan, Puerto Rico, Orders 194-529, dated 13 July 2007;  NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) with an effective date of 13 May 2007; and NGB Form 23B (ARNG Retirement Points History Statement), dated 8 September 2008.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, revocation of the orders transferring the applicant to the Retired Reserve and his reinstatement in the ARNGUS and PRARNG.

2.  Counsel, in effect, defers to the applicant. 

3.  Counsel provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military personnel records show he enlisted in the ARNGUS and PRARNG for a period of 6 years on 12 January 1972 and was ordered to active duty for training (ACDUTRA) on 25 May 1972.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).  On 12 October 1972, the applicant was honorably released from ACDUTRA and returned to state control as a member of the PRARNG.

2.  The applicant continued to serve in the ARNGUS and PRARNG, but had non-military, breaks in service from 2 April 1981 to 2 June 1981, 13 February 1982 to 29 November 1987, and 2 May 1990 to 20 June 1997.

3.  The applicant’s military personnel records contain a copy of Headquarters, PRARNG, Joint Forces Headquarters, San Juan, Puerto Rico, memorandum, dated 2 July 2007, subject:  Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-Year Letter).  This document shows, in pertinent part, the applicant was notified that, as a Selected Reserve member with at least 15 years qualifying service, he is eligible under Title 10, U.S. Code, section 12731b
(10 USC 12731b), to apply for retired pay on attaining age 60.  This document also shows that the applicant’s eligibility was determined based on his being in the Selected Reserve, completion of 15 years qualifying service beginning on or after 1 October 1991, not having completed 20 or more years of qualifying service, having completed at least the last 6 years of qualifying service while a member of a Reserve component, and his request to transfer to the Retired Reserve.

4.  The applicant’s military personnel records are absent any evidence of a voluntary request to transfer to the U.S. Army Reserve (USAR) Control Group (Retired Reserve).
5.  The applicant’s military personnel records contain a copy of Headquarters, PRARNG, Joint Forces Headquarters, San Juan, Puerto Rico, Orders 194-529, dated 13 July 2007.  These orders show that the applicant was honorably discharged from the PRARNG, in the rank of specialist (SPC)/pay grade E-4, on
13 May 2007, and transferred to the USAR Control Group (Retired Reserve) effective 13 May 2007.  These orders also show that the authority for this action was NGR 600-200, paragraph 8-39a, Implementation Policy, dated 1 October 2006.

6.  The applicant’s military personnel records contain an NGB Form 22 with an effective date of 13 May 2007 that shows he was honorably discharged from the ARNGUS and PRARNG on 13 May 2007 and transferred to the USAR Control Group (Retired), St. Louis, Missouri under the authority of NGR 600-200, Implementation Policy, dated 1 October 2006, paragraph 8-39a, retired, early qualification for retired pay at age 60.  At the time, he had completed 9 years,
10 months, and 23 days net service this period; 13 years and 12 days prior Reserve Component service; 22 years, 11 months, and 5 days total service for pay; and 18 years, 8 months, and 10 days total service for retired pay.

7.  The applicant’s military personnel records contain a copy of Headquarters, PRARNG, Joint Forces Headquarters, San Juan, Puerto Rico, Orders 009-510, dated 9 January 2009.  These orders rescinded Headquarters, PRARNG, Joint Forces Headquarters, San Juan, Puerto Rico, Orders 194-529, dated 13 July 2007, pertaining to the applicant’s discharge.

8.  In support of his application, the applicant provides, in pertinent part, a copy of his ARNG Retirement Points History Statement.  This document shows the applicant’s Retirement Year (RY) beginning date is 21 June, his retirement year ending (RYE) date is 20 June, and he was credited with 1,650 total points and
18 years, 8 months, and 10 days of total service for retired pay as of 13 May 2007.  This document also shows that for the applicant’s last 10 RYs (i.e., since his last break in service), including the RYE 13 May 2007, the applicant earned sufficient total points to earn “good” (qualifying) years in 8 out of 10 of those years, with an annual average of 15 membership points, 16 active duty (AD) points, and 34 inactive duty training (IDT) points.  It is also noted that for the RYE on 13 May 2007, the applicant did not earn a “good” qualifying year.

9.  In connection with the processing of this case, an advisory opinion was obtained from the Acting Chief, Personnel Division, National Guard Bureau (NBG), Arlington, Virginia, who recommends approval of the applicant's request.


     a.  The NGB advisory opinion confirms that, as of the applicant’s separation date of 13 May 2007, he had completed 18 years, 8 months, and 10 days total service for retired pay. The advisory official also states that NGR 600-200, paragraph 8-2(e)(1), provides that a Soldier having completed 18, but less than 20 years of qualifying service for retired pay will not be involuntarily separated without approval of the Secretary of the Army or his designated representative (10 USC 1176(b) or 12685).

     b.  The NGB advisory official also provides a copy of an electronic mail (email) message string discussing the applicant's case with the Chief, Personnel Service Sergeant (PRARNG).  The email indicates, in pertinent part, that the applicant should be reinstated in the ARNG in order that he may be properly processed through the Physical Disability Evaluation System (PDES).

10.  On 5 January 2009, the applicant was provided a copy of the Acting Chief, Personnel Division, National Guard Bureau, advisory opinion in order to have the opportunity to respond to its contents.  On 9 January 2009 the applicant indicated that he concurred with the advisory opinion rendered in his case.

11.  National Guard Regulation 600-200, Chapter 8 (Enlisted Separations), sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS.

     a.  Paragraph 8-2 (Authority), subparagraph d, provides that the State Adjutant General is delegated authority to: (1) separate Soldiers from Reserve of the Army status, except as noted in d (sic) below and (2) convene administrative separation boards.

     b.  Paragraph 8-2, subparagraph e, provides that the Secretary of the Army is the approval authority to order separation of Soldiers who are within two years of completing the service required to qualify for retired pay from the ARNG and Reserve of the Army.

         (1)  A Soldier having completed 18, but less than 20, years of qualifying service for retired pay will not be involuntarily separated without the approval of the Secretary of the Army or his designated representative (10 USC 1176(b) or 12686).  All recommendations for involuntary separation of Soldiers in this category will be sent to the National Guard Bureau for consideration.

         (2)  Cases involving voluntary separation at the request of the Solder need not be referred to HQDA for approval.

12.  National Guard Regulation 600-200, Chapter 8, Section X (Transfer to the Retired Reserve and Retirement), paragraph 8-39 (Eligibility), subparagraph a, provides that enlisted Soldiers who are eligible for transfer to the Retired Reserve or placement on the Retired List may apply for transfer or retirement at any time without regard to expiration term of service unless under an involuntary retention measure (i.e., stop loss) or order to active service.

13.  National Guard Regulation 600-200, Chapter 8, Section XI (Involuntary Separation of ARNG Enlisted Soldiers with 18 or More but Less Than 20 Years of Qualifying Service for Retirement), paragraph 8-43 (Authority), provides that the Secretary of the Army is the separation authority for all Soldiers with 18 or more but less than 20 qualifying years of service for retirement per paragraph
8-2d of this regulation.

14.  Army Regulation 135-178, paragraph 1-11 (Authority to order separation of Soldiers having more than 18 but fewer than 20 years of qualifying service for retired pay), provides that a Soldier having completed 18 but fewer than 20 years of qualifying service for retired pay (Title 10 USC 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.

15.  Army Regulation 140-185 (Training and Retirement Points Credit and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized.  It also discusses the procedures for recording retirement point credits and training for Reserve Component Soldiers.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, the orders transferring him to the Retired Reserve should be revoked and he should be reinstated into the ARNGUS and PRARNG because he was wrongly separated.

2.  The evidence of record shows the applicant was notified that, as a Selected Reserve member with at least 15 years qualifying service, he was eligible to apply for retired pay upon attaining age 60.

3.  The evidence of record shows that, on 13 July 2007, orders were issued that discharged the applicant from the ARNGUS and PRARNG on 13 May 2007 and transferred him to the USAR Control Group (Retired Reserve) effective 14 May 2007.  The evidence of record also shows that the applicant had completed
18 years, 8 months, and 10 days of total service for retired pay on the date he was retired (13 May 2007).  The evidence of record further shows that the authority for this action was NGR 600-200, paragraph 8-39a, Implementation Policy, dated 1 October 2006.

4.  There is no evidence the applicant requested transfer to the Retired Reserve.
There is also no evidence that an involuntary request for separation of the applicant was sent to the National Guard Bureau for consideration, or that the Secretary of the Army or his designated representative approved involuntary separation of the applicant.

5.  The evidence of record shows that subsequent to the advisory opinion that was rendered in the applicant’s case, orders were issued by Headquarters, PRARNG, Joint Forces Headquarters, San Juan, Puerto Rico, on 9 January 2009, rescinding the applicant’s discharge orders.  Moreover, information provided by the NGB advisory official indicates the applicant will be processed through the PDES.  Thus, it is reasonable to conclude that the applicant was erroneously discharged from the ARNGUS and PRARNG on 13 May 2007.  Therefore, in view of all of the foregoing, it would be appropriate to correct the applicant’s records to show that he served continuously in the ARNGUS and PRARNG without any break in service since 13 May 2007 to the present.  As a result of this correction and as a matter of equity, it would also be appropriate to credit the applicant with an equitable number of retirement points for the RYE
20 June 2007 and RYE 20 June 2008, along with an appropriate number of retirement points for the current RY (i.e., RYE 20 June 2009), if needed, as provided for in Army Regulation 140-185.

BOARD VOTE:
____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected by:

     a.  voiding the applicant’s NGB Form 22 with an effective date of 13 May 2007;

     b.  correcting the applicant’s records to show he served continuously in the ARNGUS and PRARNG without any break in service since 13 May 2007 to the present; and

     c. crediting the applicant with an equitable number of retirement points and adjusting his total points creditable for the retirement years, as shown below:

									   IDT		MEM	AD  	(Adjusted)  Total
	Begin Date	End Date		   Pts		 Pts	Pts   	Points for Ret Pay

	20060621		20070620		   34	      15		16		65
	20070621		20080620		   34	      15		16		65
   20080621		20090620		   30		 10		10		50   (Minimum Points See Note)
   
   (Note:  Earned points exceeding minimums will be recorded at RYE Date.  The RYE Date may end earlier if the applicant is properly discharged by the ARNG prior to 20090620)

2.  As a result of the above corrections, the Defense Finance and Accounting Service shall be notified of the Board's determination and credit the applicant with continuous service for pay purposes in the ARNGUS and PRARNG from 13 May 2007 to the present.  As applicable, authorize an increase in the applicant's pay, along with payment of all monies due the applicant as a result of the authorized increase in the applicant's creditable retirement points.




      _______ _   _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)                                         AR20080016245



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ABCMR Record of Proceedings (cont)                                         AR20080016245



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