BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120008476 


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:

* Voiding his discharge orders, dated 5 January 2012 (effective 12 December 2011)
* Reinstatement into the U.S. Army Reserve (USAR) with an age waiver to serve through age 62
* Retired pay at age 60

2.  The applicant states:

* The discharge was executed because the USAR erroneously indicated his qualifying years of service were insufficient to authorize an age waiver through age 62 so he could complete 20 qualifying years of service
* He served in the U.S. Marine Corps (USMC), the USAR, and the Army National Guard (ARNG) in three combat areas including Vietnam, Iraq, and Afghanistan
* When he returned from Afghanistan in 2010, he knew he needed an age waiver and worked tirelessly in an effort to reconcile the differences in his retirement points
* Despite a series of attempts to correct his points, no action was taken by the U.S. Army Human Resources Command (HRC)
* Had the corrections been made prior to discharge his records would have reflected more than 18 years and 9 months of qualifying service making it realistic to attain 20 years by age 62
* Despite the updates and Congressional interference, the most recent retirement points statement shows he is a few months short of 
18 qualifying years of service; yet he has served continuously since 1996
* Either HRC calculations are still incorrect or his recruiter misled him in 1996 by knowingly enlisting him with the knowledge he would likely never be able to attain 20 qualifying years of service
* All he wants is for the Board to relax the rules, let him serve through age 62 and complete 20 qualifying years of service, and retire peacefully

3.  The applicant provides:

* Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points), dated 12 August 2011
* Military pay printout, dated 31 December 1997
* Discharge orders 12-005-00010
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 26 June 1951. 

2.  He enlisted in the USMC on 15 August 1968 and he was honorably released from the USMC on 13 August 1971 and transferred to the USMC Reserve to complete his remaining service obligation.  He completed 2 years, 11 months, and 29 days of active service.

3.  He was discharged from the USMC Reserve on 11 July 1974 upon completion of his military service obligation.

4.  After a break in service, he enlisted in the ARNG for 3 years on 10 May 1993 but he was separated 1 month and 2 days later, per his request, on 11 June 1993.  He was transferred to the USAR Control Group (Reinforcement).

5.  He enlisted in the USAR on 25 September 1996.  He followed that with a 
3-year extension on 23 September 1999 and what appears to be another extension or reenlistment in 2002.   

6.  He entered active duty on 17 September 2003 and subsequently served in Guantanamo Bay from November 2003 to July 2004.  He was honorably released from active duty on 9 August 2004.  

7.  He was discharged from the USAR on 30 January 2007 for the purpose of enlisting in another component.
8.  He enlisted in the ARNG for 1 year on 26 February 2007.  He was honorably discharged from the ARNG on 7 February 2008.  

9.  He enlisted in the USAR on 8 February 2008 for a period of 3 years.  He entered active duty on 3 September 2009 and served in Afghanistan from October 2009 to August 2010.  He was honorably released from active duty on 3 October 2010. 

10.  He turned age 60 on 26 June 2011.

11.  On 5 January 2012, Headquarters, USAR Command, Fort Bragg, NC, published Orders 12-005-00010 ordering his honorable discharge from the USAR effective 12 December 2011.  The authority for the discharge is listed as Title 10, U.S. Code (USC), section 12108(2) (Enlisted members, discharge or retirement, for years of service or age).

12.  His ARPC 249-E, dated 12 August 2011, shows he completed 16 years, 
9 months, and 23 days of qualifying service for non-regular retirement.  However, it appears he has been communicating with HRC officials to update his points.  An updated ARPC Form 249-E, dated 12 March 2012 reflects completion of
17 years, 8 months, and 12 days of qualifying service. 

13.  Title 10, USC, section 12108 states each reserve enlisted member of the Army, Navy, Air Force, or Marine Corps who is in an active status and has reached the maximum years of service or age prescribed by the Secretary concerned shall: (1) be transferred to the Retired Reserve if the member is qualified for such transfer and does not request (in accordance with regulations prescribed by the Secretary concerned) not to be transferred to the Retired Reserve; or (2) be discharged if the member is not qualified for transfer to the Retired Reserve or has requested (in accordance with regulations prescribed by the Secretary concerned) not to be so transferred.

14.  Army Regulation 135-178 (ARNG and USAR - Enlisted Administrative Separations) established policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the ARNG and USAR.  Chapter 15 provides for other reasons for separation.  Paragraph 15-2(c) states enlisted Soldiers may be separated for attainment of maximum allowable age.  A Soldier who attains age 60 as set forth in Army Regulation 140-10, as appropriate, unless granted a waiver is granted will be discharged or, if eligible and the Soldier applies, be transferred to the Retired Reserve.  The discharge will be effective the last day of the month in which the Soldier attains age 60.

15.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.  

16.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service), implements statutory authorities governing the granting of “retired pay” to Soldiers and former Reserve component Soldiers.  Retired Pay is defined as pay granted Soldiers and former Reserve Components Soldiers under title 10, USC, section 1331, after completion of 20 or more years of qualifying service and upon attaining age 60.  It also states that to be eligible for retired pay an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 
20 years of qualifying service.  Each Reserve Component Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.

17.  Title 10, USC, sections 12731-12737 authorize retired pay for Reserve Component military service.  To be eligible for retired pay under this law, a reserve Soldier upon attaining age 60 must have completed a minimum of
20 qualifying years.  After 1 July 1949, a qualifying year is defined as the reserve Soldier must have earned at least 50 retirement points.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the USMC, ARNG, and USAR throughout the years.  His records show he completed 17 years, 8 months, and 12 days of qualifying service for non-regular retirement.  There is no evidence in his records and he provides none to show he qualified for or requested an age waiver and was denied nor does he provide sufficient evidence to show he completed an additional year of qualifying service.

2.  By law, in order to be eligible for retired pay, a Reserve Soldier upon attaining age 60 must have completed a minimum of 20 qualifying years of service.  A qualifying year is defined as a year in which the Reserve Soldier earned at least 
50 retirement points.  Since he attained age 60 in 2011 and had not completed 20 qualifying years of service he was discharged as required by statute and regulation.  



3.  Notwithstanding the applicant's sincerity and honorable service, in wartime and peacetime, in the absence of substantiating service confirming completion of 20 qualifying years towards non-regular retirement, regretfully, there is no reason to void his discharge. 

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)                                         AR20120008476



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ABCMR Record of Proceedings (cont)                                         AR20120008476



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