IN THE CASE OF:	  

		BOARD DATE:	  21 May 2013

		DOCKET NUMBER:  AR20120018415 


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, correction of Orders 324-715, dated 30 November 2006, issued by the Department of the Army and Air Force Land Component, Joint Force Headquarters Kansas, Topeka, KS, to show he was transferred to the Retired Reserve effective 20 November 2006 vice honorably discharged on 20 November 2006.

2.  The applicant states when he got out of the Kansas Army National Guard (KSARNG) in 2006, he was not put into the Retired Reserve.  At the time, he was not aware that if he did not go into the Retired Reserve retirement pay would be based on 2006 pay and not 2012 pay.

3.  The applicant provides his National Guard Bureau (NGB) Form 22, NGB Form 23B (ARNG Retirement Points History Statement), his Twenty-Year Letter, and orders.

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 was born on XX November 1952.

3.  Having had prior active and Reserve service, the applicant's records show he enlisted in the KSARNG in the rank of sergeant (SGT)/E-5 on 19 April 1999.  He was assigned to the 1st Battalion, 108th Aviation Brigade, Topeka, KS.  

4.  On 20 November 2006, by memorandum, the ARNG issued him a Twenty Year Letter.  This memorandum notified him that he had completed at least 20 years of qualifying service and he would be eligible for retired pay upon application at age 60.  

5.  Orders 324-714, dated 20 November 2006, issued by the Department of the Army and Air Force Land Component, Joint Force Headquarters Kansas, Topeka, KS, promoted him to the to the rank/grade of staff sergeant (SSG)/E-6 effective 19 November 2006 with a date of rank of 6 April 2000.  These orders contain the statement "Soldier is promoted to the highest grade held for retirement purposes one day prior to transfer to the Retired Reserve" (emphasis added).

6.  Orders 324-715, dated 20 November 2006, issued by the Department of the Army and Air Force Land Component, Joint Force Headquarters Kansas, Topeka, KS, honorably discharged him from the ARNG effective 20 November 2006.  The authority is shown as paragraph 8-39b, National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management). 

7.  The NGB Form 22 he was issued for this period of service shows he was honorably discharged on 20 November 2006 in lieu of transfer to the Retired Reserve.  He completed a total of 21 years, 4 months, and 21 days of service for retired pay.

8.  The NBG Form 22 he was issued contains the following entries in:

* items 5a (Rank) and 5b (Pay Grade) "SGT" and "E-5"
* item 6 (Date of Rank) "96-01-20"
* item 9 (Command to Which Transferred) "NA" (not applicable)

9.  His NGB Form 22 also shows the applicant was not available for signature.

10.  Orders C10-290908, dated 5 October 2012, issued by the U.S. Army Human Resources Command, retired the applicant and placed him on the Retired List in the rank of SSG effective XX November 2012.

11.  During the processing of this case, an advisory opinion was obtained from the Deputy Chief, Personnel Policy Division, NGB on 15 February 2013.  The advisory official recommended approval of the applicant's request to have Orders 324-715 amended to show he was transferred to the Retired Reserve on 20 November 2006 vice honorably discharged.  The advisory official opined:

	a.  According to NGR 600-200 Soldiers with Twenty-Year Letters who are being separated will be transferred to the Retired Reserve unless they specifically request in writing on DA Form 4187 (Personnel Action Request) to be discharged from both their State and Reserve of the Army statuses.  The Soldier must be counseled in writing on DA Form 4856 (Developmental Counseling Form) of the effects of electing not to enter the Retired Reserve, the possibility of the loss or delay of retired pay and medical benefits, and possible loss of an identification card and privileges, if the Soldier does not apply for placement on the Retired List and retired pay.

	b.  There is no supporting documentation in the Soldier's personnel file indicating he was counseled, or that he submitted a DA Form 4187 stating he elected not to be transferred to the Retired Reserve at the time of his separation.  The State cannot provide documentation showing such counseling was conducted.

	c.  In discussion with the KSARNG and the Retirement Services Branch, NGB, it is recommended the State amend the applicant's discharge order and complete the necessary paperwork to transfer him to the Retired Reserve effective 20 November 2006.  He should be granted full administrative relief and his retirement points should be adjusted based on his transfer to the Retired Reserve.  He should be awarded any pay, allowances, and benefits that may have been lost as a result of this error.

	d.  The State concurred with this recommendation.

12.  On 19 February 2013, the applicant was provided a copy of the advisory opinion for comment or rebuttal.  On 24 February 2013, he concurred with the advisory recommendation.




DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was inappropriately discharged from the ARNG on 20 November 2006.  The advisory official confirmed there was no evidence to show the applicant requested a discharge in lieu of transfer to the Retired Reserve or that he received counseling on the implications of a discharge vice transfer to the Retired Reserve as required by the governing regulation.  Therefore, he is entitled to the requested relief.

2.  In addition, his records show he was promoted to SSG effective 19 November 2006 with a DOR of 6 April 2000 which is not shown on his NGB Form 22.  Therefore, it would be appropriate to correct his NGB Form 22 to show his correct rank/grade, DOR, and to show he was transferred to the Retired Reserve on 20 November 2006 vice discharged.

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 the State Army National Guard records and all Department of the Army records of the individual concerned be corrected by:

	a.  Amending Orders 324-715, dated 20 November 2006, to show he was transferred to the Retired Reserve effective 20 November 2006.

	b.  Amending his NGB Form 22 for the period ending 20 November 2006 to show he was honorably separated from the ARNG by reason of transfer to the Retired Reserve and deleting the entries in items 5a, 5b, 6, and 9 and replacing them with the following in:

* items 5a and 5b the entries "SSG" and "E-6" respectively
* item 6 the entry "00-04-06"
* item 9 the entry "Retired Reserve"
	c.  Ensuring his retirement pay is adjusted based on the corrections above and paying him any monies owed as a result of these corrections. 



      _______ _   _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)                                         AR20120018415





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ABCMR Record of Proceedings (cont)                                         AR20120018415



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