IN THE CASE OF:	  

		BOARD DATE:  24 January 2013

		DOCKET NUMBER:  AR20120010920 


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 the following corrections of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 December 2007:

* Item 25 (Separation Authority) to show Title 10, U.S. Code (USC), chapter 1223
* Item 28 (Narrative Reason for Separation) to show "Sufficient Service for Reserve Retirement per Eligibility Letter dated 2 July 2012"

2.  He states that he currently receives retired pay based on 7860 points and not 20 years of active Federal service (AFS).  This makes the discharge compliant with the letter and intent of the Uniform Services Employment and Reemployment Rights Act (USERRA) for benefits protection after discharge and return to civilian occupation.  He wants his separation to read as a reserve retirement and separation not one of a Regular Army (RA), the traditional Soldier.

3.  He provides:

* Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* 2007 DD Form 214
* 2010 Military Service Deposits statement
* 2012 Chronological Statement of Retirement Points
* Memorandum for Record (MFR): Call to the Defense Finance and Accounting Service (DFAS) Retiree Pay Section.

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.  The applicant’s military records show he was appointed in the U.S. Army Reserve (USAR), as a second lieutenant, on 10 April 1981, with prior enlisted service.  He entered active duty on the same day.  He was honorably released from active duty on 30 September 1992 and was transferred to the USAR Control Group (Reinforcement).  He was credited with completing 11 years, 5 months, and 21 days of net active service.

3.  He was appointed in the Washington Army National Guard (WAARNG) on 1 January 1994.  He was honorably released from the WAARNG, in the rank of major, on 19 April 1996, and was transferred to a Reserve unit.  He was credited with completing 20 years, 6 months, and 25 days of total service for pay.

4.  On 3 July 2002, he was issued a 20-Year letter.  The letter advised him that he had completed the required years of qualifying service and was eligible for retired pay upon application at age 60 in accordance with Title 10, USC, chapter 1223.

5.  He was ordered to active duty to obtain 20 years of AFS under the Extended Active Duty (EAD) Sanctuary Program with a reporting date of 15 August 2006.  He entered active duty on 15 August 2006.

6.  He was honorably retired on 31 December 2007 and was transferred to the Retired Reserve.  He was credited with completing a total of 32 years, 2 months, and 16 days of net active, prior active, and inactive service.

7.  He was issued a DD Form 214 showing the following entries:

* Item 25 - "Army Regulation 600-8-24, paragraph 6-13c(1)"
* Item 28 (Narrative Reason for Separation) - "Sufficient Service for Retirement"

8.  He provides a copy of a Military Service Deposits Statement, dated 20 October 2010, that shows he made a total deposit of $17,889.23.  The forms also show he marked the section that shows his service from 19 November 2004 to 22 December 2007 is annotated as a "multiple period" and needs to be changed to reflect Title 10, USC, chapter 1223 for USERRA credit.

9.  This form further shows USERRA credit was awarded for his service from 25 October 2001 to 19 August 2002.  

10.  His Chronological Statement of Retirement, dated 13 April 2012, shows he was credited with 29 years, 4 months, and 5 days of qualifying years for retirement and 7,875 total creditable points as of his retirement years ending 1 August 2008.

11.  He also provides an MFR, dated 24 May 2012, wherein he states:

   a.  He called DFAS Retired Pay section in KY to confirm his retired pay status/category.  He was told he had 32 years and 16 days of service; 21 years, 10 months, and 5 days of points; and 7222 points of active service.
   
   b.  He is receiving pay as a retired Reserve officer that includes his active and inactive duty for training points as outlined in Title 10, USC, chapter 1223.  The DFAS clerk told him to request a correction to his record to clarify this.  He needs it for USERRA credit on his last Officer of Personnel Management (OPM) Form 1514 (Military Deposit Worksheet).  

12.  He will reach age 60 on 29 April 2016.

13.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve component and discharge functions of all officers on active duty for 30 days or more.  Paragraph 6-13c(1) states an RA or USAR commissioned officer who has 20 years (AFS) (of which 10 years is active commissioned service) may on their request be retired.  A USAR officer does not have to be serving on active duty in a commissioned status or in an active USAR status to be eligible under this paragraph.  

14.  Title 10, USC, Chapter 1223, section 12731, states a person is entitled, upon application, to retired pay if the person is at least 60 years of age; has performed at least 20 years of service; and at the time, performed the last 8 years of qualifying service while a member of the Reserve.
15.  The USERR Act of 1994 is a federal law intended to ensure that persons who served or have served in the Armed Forces, Reserves, ARNG, or other uniformed service:  (1) are not disadvantaged in their civilian careers because of their service; (2) are promptly reemployed in their civilian jobs upon their return from duty; and (3) are not discriminated against in employment based on past, present, or future military service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was appointed in the USAR on 10 April 1981.  He was issued a 20-Year letter on 3 July 2002.  He entered active duty on 15 August 2006 and was retired on 31 December 2007.  He was issued a DD Form 214 showing in Item 25 he was retired under the provisions of Army Regulation 600-8-24, paragraph 6-13c(1), for Sufficient Service for Retirement.  

2.  In accordance with regulatory guidance the separation authority and narrative reason for separation listed on his DD Form 214 are commensurate with and correspond to the reason for his separation.  He has failed to show through the evidence submitted or the evidence of record that these are incorrect.  

3.  No pay records from retired pay or a completed OMP Form 1514 were available for review.  There appears to be no other discrepancies in his record of service and his retirement points statement and he did not provide sufficient evidence to support his contentions that his records are in error.  There is also no evidence he was denied USERRA benefits based on items 25 and 28 on his DD Form 214.  There is simply no information or available evidence to support his 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)                                         AR20120010920





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ABCMR Record of Proceedings (cont)                                         AR20120010920



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