BOARD DATE:	  4 December 2012

		DOCKET NUMBER:  AR20120002831 


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 reconsideration of the Board's denial of her previous request for correction to her years of service, voidance of her 1 April 2010 discharge from the U.S. Army Reserve (USAR), and reinstatement in order to complete 20 years of qualifying service for retirement.

2.  The applicant states if the personnel manager that mismanaged and was negligent in not processing her records onto her permanent files had taken care of her records she would still be serving her country.

	a.  She enclosed evidence proving the Board missed corrections to her retirement points for the periods 5 November 1997 - 4 November 1998
(49 points) and 5 November 1998 - 4 November 1999 (18 points).  The previous Board proceedings show the Board received the DA Forms 1380 (Record of Individual Performance of Reserve Duty Training) giving her an additional 49 retirement points for retirement year 1997-1998 and an additional 18 retirement points for retirement year 1998-1999.  Neither of these years were applied to her Army Reserve Personnel Center (ARPC) Form 249-E (Chronological Statement of Retirement Points) even after the Board acknowledged verification.  These points would credit her with 19 years,
4 months, and 28 days of qualifying retirement credit.

	b.  She also earned over 60 points during her last year and it would have been a good year if her records had been reviewed and corrected by the special selection board before her discharge.


	c.  She is requesting that once her retirement points are corrected she be reinstated in the USAR in order to complete 20 years of qualifying service for retirement.

3.  The applicant provides:

* an internet news article
* extract of the original Board proceedings with notes regarding retirement point credit
* copies of DA Forms 1380
* detailed retirement points listing

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100018817, on 8 February 2011.

2.  The U.S. Army Human Resources Command (HRC) Soldier Management System (SMS) database transaction detail section shows that on previous occasions documentation was requested from the applicant in an effort to credit her with additional retirement points.  However, there is no evidence the applicant exhausted her administrative remedies by submitting the DA Forms 1380 in question directly to HRC, the agency responsible for verifying, certifying and inputting retirement points.  In spite of this and based on the circumstances, the Board will consider the applicant's statement that the Board missed corrections to her retirement points in the previous proceedings as a new argument and that the internet news article is also new evidence warranting consideration by this Board.  It is noted that contrary to her contention that it did, the Board did not acknowledge verification of the retirement points in question, but rather the Board simply stated what is shown on the applicant's ARPC Form 249-E.

3.  The applicant was appointed as a second lieutenant in the USAR, Army Nurse Corps, on 29 October 1987.  She was promoted to the rank of major on 11 July 2002.

4.  On 1 April 2010, she was honorably discharged from the USAR by reason of completion of the maximum authorized years of service following a second nonselection for promotion to lieutenant colonel.


5.  She submits a news article related to the murder trial of the personnel manager to support her claim that he mismanaged her records and he was negligent in not processing her records onto her permanent files.

6.  A review of the HRC SMS database transaction detail remarks section revealed the applicant's retirement points were updated/corrected in the system on more than one occasion based on documents provided.  This review failed to reveal any remarks related to the retirement points she is now requesting the Board certify/grant.

7.  A review of the applicant's ARPC Form 249-E generated in September 2012 shows the applicant was credited with 17 years, 4 months, and 28 days of qualifying years for retirement and 1,352 total career points creditable for retirement as of her discharge on 1 April 2010.  This ARPC Form 249-E further revealed she does not have sufficient points credited to attain a "good year" for retirement years:

* 5 November 1997 through 4 November 1998 - 18 points
* 5 November 1998 through 4 November 1999 - 34 points
* 5 November 1999 through 4 November 2000 - 41 points
* 5 November 2002 through 4 November 2003 - 23 points
* 5 November 2003 through 4 November 2004 - 16 points

8.  The ARPC Form 249-E generated in September 2012 further shows the following pertinent retirement year detail.

	a.  Beginning Date, Yr Mo Day
	b.  Ending Date, Yr Mo Day
	c.  Military Personnel Class
	d.  Status or Component
	e.  Inactive Duty Points
	f.  Extension Course Points
	g.  Membership Points
	h.  Active Duty Points
	i.  Qualifying for Retirement, Yrs Mos Days
	j.  Total Points Creditable

a
b
c
d
e
f
g
h
i
j
2009 11 05
2010 04 01
COM
USAR
18
36
  6
5
00 04 28
65
1998 11 05
1999 11 04
COM
USAR
14
  0
15
5
00 00 00
34
1997 11 05
1998 11 04
COM
USAR
  1
  2
15
0
00 00 00
18


9.  The DA Forms 1380 she submits were not all completed in accordance with Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength) and page 2 of the form.  These errors include missing entries, incorrect duty entries, authorization for duty not cited, incorrect format of entries in item 10c (Retirement Points), etc.  Additionally, there is no signature authority documentation attached to allow for a noncommissioned officer or civilian signature.  It is unknown whether the applicant attempted to have the unit correct the forms.

10.  She resubmits DA Forms 1380 for retirement year 5 November 1997 through 4 November 1998 showing a total of 49 retirement points.  Based on an Integrated Web Services (IWS) retirement points detail printout only 48 of these points, listed below, can be verified as additional points beyond that for which she has already been credited on her ARPC Form 249-E.  The 1 retirement point for extension (ext) education cannot be verified as additional credit.

* 10 retirement points for 12, 13, 14, 17, and 18 November 1997
* 4 retirement points for 1 and 2 December 1997
* 4 retirement points for 9 and 10 February 1998
* 4 retirement points for 9 and 10 March 1998
* 4 retirement points for 23 and 24 March 1998
* 4 retirement points for 22 and 23 May 1998
* 8 retirement points for 22, 23, 24, and 25 June 1998
* 10 retirement points for 26, 27, 28, 29, and 30 October 1998

11.  The IWS retirement points detail printout shows the following data for the retirement years 5 November 1998 through 4 November 1999:

Start Date
End Date
Type of Retirement Points
Status
Points
1999 09 06
1999 09 06
Performance of Inactive Duty Training (IDT)
Inactive
1
1999 06 20
1999 06 24
Attendance at Active Duty for Training (ADT)
Active
5
1999 06 18
1999 06 18
Performance of IDT
Inactive
1
1999 06 17
1999 06 17
Performance of IDT
Inactive
2
1999 06 16
1999 06 16
Performance of IDT
Inactive
2
1999 06 15
1999 06 15
Performance of IDT
Inactive
2
1999 06 14
1999 06 14
Performance of IDT
Inactive
2
1999 03 26
1999 03 26
Performance of IDT
Inactive
1
1999 03 25
1999 03 25
Performance of IDT
Inactive
1
1999 03 24
1999 03 24
Performance of IDT
Inactive
1
1999 03 23
1999 03 23
Performance of IDT
Inactive
1
12.  The DA Forms 1380 she submits for retirement year 5 November 1998 through 4 November 1999 show a total of 18 retirement points earned, that based on the IWS retirement points detail printout, do not appear to be included on her ARPC Form 249-E.

* 10 retirement points for 8, 9, 10, 11, and 12 December 1998
* 8 retirement points for 1, 2, 3, and 4 November 1999

13.  She will reach age 60 on 2 August 2020.

14.  Title 10, U.S. Code, sections 12731 through 12739, authorizes retired pay for Reserve Component (RC) 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 earned 50 retirement points or more.  The term "good years" is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.

15.  Army Regulation 135-155 Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers of the USAR.  Paragraph 4-33 outlines actions resulting from nonselection.  It states that a major on the Reserve Active Status List who has failed of selection for promotion to lieutenant colonel for the second time and whose name is not on a list of officers recommended for promotion to LTC, will be separated unless the officer has a remaining service obligation or can be credited with 18 or more but less than 20 years of qualifying service for retired pay.  Separation will be on the later of the first day of the month after the month in which the officer completes 20 years of commissioned service, or the first day of the seventh month after the approval date of the promotion board report that nonselected the officer for the second time.

16.  Army Regulation 135-180 (Army National Guard and USAR Qualifying Service for Retired Pay Nonregular Service) specifies that an individual does not need to have a military status at the time of application 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) served the last 8 years of his or her qualifying service as an RC Soldier.  The requirement to serve the last 8 years in an RC was amended to the last 6 years and currently there is no minimum requirement.  This regulation further states that each RC Soldier who completes the service required to be eligible for retired pay at age 60 under this regulation will be notified in writing within 1year after he or she has completed that service.  The notification will be issued to those individuals credited with 20 years of qualifying service prior to discharge or transfer to the Retired Reserve.

17.  Army Regulation 140-185 prescribes the types of training and activities for which retirement points are authorized and the procedures for recording retirement point credits and training for USAR Soldiers.  It provides that an annual Statement of Retirement Points will be prepared for all Soldiers regardless of the number of points awarded.  The purpose of the statement is to give a permanent record of the total retirement points a Soldier earns during a retirement year; to tell the Soldier whether he/she earned sufficient points to be credited with a qualifying period for retired pay or for retention in an active status; and to give the Soldier an opportunity to request correction of errors in the statement.

18.  Chapter 3 of this regulation prescribes the instructions for the preparation of the DA Form 1380.  It provides that this form will be prepared for a unit Soldier who performs equivalent training or additional training with his/her unit subsequent to the submission of DA Form 1379 (U.S. Army Reserve Components Unit Record of Reserve Training).  One copy of the DA Form 1380 will be sent to the designated input station and a copy filed in the Soldier's Personal Financial Record.

19.  Title 10, U.S. Code, section 12646 (Commissioned officers, retention after completing 18 or more but less than 20 years of service) contains the legal authority to retain officers who have completed 18 or more but less than 20 years of service on the date prescribed for the discharge or transfer from an active status.  It states:

	a.  If on the date prescribed for the discharge or transfer from an active status of a reserve commissioned officer he/she is entitled to be credited with at least 18, but less than 19 years of service, he/she may not be discharged or transferred from an active status without his/her consent before the earlier of the following dates:

		(1)  the date on which he/she is entitled to be credited with 20 years of service, or

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

	b.  If on the date prescribed for the discharge or transfer from an active status of a reserve commissioned officer he/she is entitled to be credited with at least 19, but less than 20, years of service, he/she may not be discharged or transferred from an active status without his/her consent before the earlier of the following dates:

		(1)  the date on which he/she is entitled to be credited with 20 years of service; or

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant, as an active member of the RC at the time, should have been receiving annual retirement points statements and could have raised any questions concerning her points/qualifying years of service at any time.  It appears that although the DA Forms 1380 she submits have input errors and/or were missing the signature authority, the applicant performed the duties.  Several years have passed since the duty was performed, making correction at this time prohibitive.  However, based on the DA Forms 1380 provided by the applicant it would be appropriate to update the applicant's retirement points record by showing:

	a.  She earned 48 points (1 extension point not verified as additional) in addition to the 18 points already reflected in her records for retirement year 5 November 1997 through 4 November 1998.  Therefore, her records should be corrected to show she earned 66 retirement points for this retirement year.

	b.  She earned 18 points in addition to the 34 points already reflected in her records for retirement year 5 November 1998 through 4 November 1999.  Therefore, her records should be corrected to show she earned 52 retirement points for this retirement year.

	c.  She completed 19 years, 4 months, and 28 days of qualifying service for retirement.

2.  Based upon the above corrections, it appears the applicant was erroneously discharged on 1 April 2010 because under the governing regulation members completing 19 but fewer than 20 years of qualifying service for retired pay will not be involuntarily separated without the consent of the Secretary of the Army.  She would have been authorized to serve until the date on which she would have become entitled to credit of 20 years of service or the second anniversary of the date on which she would otherwise have been discharged or transferred from an active status.  She has expressed her willingness to return to complete 20 years of qualifying service in the USAR.  However, she already exceeded her maximum years of service.  As such, it would be appropriate in the interest of equity and justice, in lieu of reinstating her to an active status in the USAR for the purpose of attaining 20 years of qualifying service for non-regular retired pay, that HRC redistribute retirement points thereby giving her the 1 additional year of qualifying service necessary for her to qualify for non-regular retirement pay at age 60.

3.  In view of the foregoing, the applicant's records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x___  __x______  __x______  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented was sufficient to warrant partital amendment of the ABCMR’s decision in Docket Number AR20100018817, dated 8 February 2011.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  crediting her with 48 additional retirement points for retirement year 5 November 1997 through 4 November 1998;

	b.  crediting her with 18 additional retirement points for retirement year 5 November 1998 through 4 November 1999;

	c.  redistributing retirement points, thereby giving her the 1 additional year of qualifying service necessary for her to qualify for non-regular retirement pay at age 60;

	d.  issuing the applicant a notification of eligibility for retired pay at age 60
(20-year letter);

	e.  publishing orders voiding her 1 April 2010 discharge making it of no force or effect;
	f.  publishing orders transferring the applicant to the Retired Reserve effective 1 April 2010; and

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to reinstating her to an active status in the USAR for further service.



      _________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)                                         AR20120002831



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ABCMR Record of Proceedings (cont)                                         AR20120002831



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