IN THE CASE OF:	  

		BOARD DATE:	  1 November 2012  

		DOCKET NUMBER:  AR20120003532 


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, that his records be corrected to show he qualified for an early Reserve retirement.  He also requests to be issued a 
15-Year Letter.

2.  He states he was led to believe a 15-Year Letter would be issued when he became eligible for retirement.  The U.S. Army Human Resources Command (AHRC) sent him a packet which included a DD Form 2656 (Data for Payment of Retired Personnel) and other documents for retirement; however, a 15-Year Letter was not supplied.

3.  He adds that according to item 9 (Qualifying for Retirement – Years Months Days) of his ARPC Form 249-E (Chronological Statement of Retirement Points), dated 3 January 2012, he has 15 years, 4 months, and 2 days with a total of 2925 Total Creditable Points as shown in item 10.

4.  The applicant also states according to Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Section IV (Computation of Service), paragraph 12-25 (Service Creditable for Retirement), his 15 plus years of service is creditable for retirement.  

5.  He provides:

* various separation documents
* a DD Form 2656

* a DD Form 108 (Application for Retired Pay Benefits)
* an ARPC Form 249-E

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.  He provided a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was born on 25 December 1952.  He served in the Regular Army from 30 August 1971 to 25 July 1973 and was transferred to the U. S. Army Reserve (USAR) Control Group (Annual Training) after completing 1 year, 10 months, and 26 days of total active service.  

3.  He provided a second DD Form 214 which shows he enlisted in the Regular Army on 11 October 1974 and was honorably discharged on 10 October 
1978 after completing 4 years of net active service. 

4.  After a break-in-service, he was a member of the Kansas Army National Guard from 1 September 1983 to 31 August 1984.  He was honorably discharged after 1 year of net service.  The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) he provided shows he had 1 year, 
2 months, and 16 days of prior Reserve Component (RC) service and 5 years, 
10 months, and 26 days of prior active duty service with a total of 8 years, 
1 month, and 12 days total service for pay.  

5.  After a second break-in-service, he enlisted in the USAR on 8 August 1986.  This enlistment established the day and month of his retirement year ending (RYE) as 7 August for all subsequent years. 

6.  The applicant's record also contains a copy of an addendum which he signed on 10 December 1994.  This document shows, in part, he understood:

* he had at least 6 years but less than 15 years of qualifying service
* due to the inactivation or reorganization of his unit he must be reassigned
* if he was not offered an assignment or if he refused to accept an assignment to another RC unit, he would be involuntarily reassigned to the Individual Ready Reserve (IRR) 
* if involuntarily assigned to the IRR, he would be authorized separation pay based on the total number of retirement points and base pay

7.  He completed a DA Form 4187 (Personnel Action) request for RC Transition Benefits.  This form shows he indicated (by his initials) an assignment to another unit was not available and he was accepting an involuntary transfer to the IRR.  He also indicated he had 14 years of qualifying service for non-regular retired pay.  His chain of command recommended approval on 13 January 1995.  

8.  His record contains orders which show he was released from his then current unit of assignment due to deactivation of the unit.  He was assigned to the USAR Control Group (Reinforcement) effective 13 January 1995.  The authority was listed as Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) and XE Addendum (B).  The additional instructions show, in part:

* Selected Reserve Transition Program Type "XE"
* Soldier is eligible for separation pay and basic benefits based upon years of qualifying service

9.  He provided a copy of an Honorable Discharge Certificate and his record contains orders which show he was discharged from the USAR Control Group (Reinforcement) on 7 April 1998.

10.  A review of the applicant's Interactive Personnel Records Management System (iPERMS) file shows he requested assistance in completing his retirement packet on 7 December 2011.  He stated he had received a bonus when his unit deactivated in the 1990s but was unable to find the paperwork indicating what type of bonus he received.  He was told to contact the Defense Finance and Accounting Service to obtain historical data. 

11.  The applicant provided a DD Form 2656 and a DD Form 108 that show he applied for retired pay on 14 December 2011. 

12.  He also provided an ARPC Form 249-E which was generated on 3 January 2012.  This form shows he had 15 years, 4 months, and 2 days of service qualifying for retirement.  This form also includes two additional RYE dates of 
13 January 1995 and 3 March 1995 which are not shown on the ARPC Form 249-E that was generated on 7 May 2012 by AHRC. 

13.  During the processing of his case, an advisory opinion was obtained on 
10 May 2012 from the Program Manager, Transition Assistance Management Program (TAMP), AHRC.  She stated the applicant was in a unit which deactivated during the TAMP and he chose to be involuntarily transferred to the IRR.  At the time, he had 14 years of qualifying service and he does not meet the criteria specified by law for issuance of a 15-Year Letter.  She also provided an ARPC Form 249, generated on 7 May 2012 which shows he had 14 years, 
10 months, and 26 days of service qualifying for retirement.  It shows he earned 42 retirement points in RYE 7 August 1995.

14.  The applicant was provided a copy of the advisory opinion for rebuttal or response; however, he did not respond. 

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

   a.  Paragraph 1-4 (Establishment of retirement year) of this document states the retirement year ending (RYE) date once established will not change as long as the Soldier has continuous service in an active status in a Reserve and/or regular component.  It will change when there is a break in active status. 
   
   b.  If a Soldier is separated or removed from an active status during a retirement year, the Soldier may be credited with a proportionate maximum number of IDT points for that year as shown in appendix A of this regulation.  Appendix B of this regulation shows the minimum number of points required for a partial year of qualifying service.  Appendix C shows the number of membership points authorized for a partial year.
   
16.  Title 10, U.S. Code, section 12731a was the temporary special retirement qualification authority.  It provided that, during the period 1 October 1991 through 30 September 1999, a member of the Selected Reserve who completed at least 15 years but less than 20 years of qualifying service as of 1 October 1991 could upon request by the member, be transferred to the Retired Reserve.  The Secretary concerned could limit the applicability of this section to meet the needs of the service.  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.

17.  Army policy at the time, which was highly publicized, stated that separation pay based upon total number of retirements points and base pay under the Selected Reserve Transition Program Type “XE” was authorized to an individual who was a member of the Selected Reserve during the 12-month period prior to separation; who lost a valid unit position due to unit inactivation, reorganization, or relocation; who completed at least 6 years but less that 15 years of qualifying service.  The individual must have chosen to be involuntarily transferred to the IRR based on non-availability of another unit assignment by completing a 
DA Form 4187.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be issued a 15-year letter in order to qualify for a Reserve early retirement has been carefully reviewed.

2.  When his unit inactivated in 1995, he chose the option to be involuntarily transferred to the IRR and to receive separation pay.  He also indicated he only had 14 years of qualifying service at that time, but only 8 points short of having 15 years of qualifying service.  

3.  The unit inactivation was directed under the provisions of the TAMP and therefore was not due to any action on the part of the applicant.  It is reasonable to presume that had the unit remained an active Reserve unit or had the applicant been properly briefed on how he could have earned those last 8 points, the applicant would have continued his RC career.  

4.  Notwithstanding the advisory opinion which stated he did not meet the criteria for a 15-year letter, it would serve in the interest of equity to move 8 points from a "good year" to the RYE date of 7 August 1995 and show he had 15 years of qualifying service for a Reserve early retirement and issue him a 15-year letter which authorizes him to receive retired pay at age 60. 
 
5.  The Defense Finance and Accounting Service (DFAS) will be required to offset his retired pay by collecting any debt accrued as a result of him receiving separation pay in 1995.  

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 RSOs 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 that the evidence presented was 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:

	a.  moving 8 points from a "good year" to RYE 7 August 1995;

   b.  showing he had 15 years of qualifying service for a Reserve early retirement and applied for retired pay in a timely manner to be effective when he turned age 60;
   
   c.  having DFAS collect any debt owed as a result of him receiving separation pay.




      _______ _   _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)                                         AR20120003532





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ABCMR Record of Proceedings (cont)                                         AR20120003532



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