BOARD DATE:  18 April 2013

		DOCKET NUMBER:  AR20120018714


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, the issuance of a Notification of Eligibility for Retired Pay at Age 60 (20-year letter) and transfer to the Retired Reserve.

2.  The applicant states:

* he served a total of 19 years, 10 months, and 21 days prior to being placed on the temporary disability retired list (TDRL)
* he had accumulated the required points to be credited with a satisfactory year (his 20th year); however, he was not issued a 20-year letter
* this was overlooked, and instead he was processed for a disability retirement
* his retirement processing was accomplished without his knowledge, as he received no discharge papers of any kind from the New Jersey Army National Guard (NJARNG)

3.  The applicant provides no additional evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on XX December 1962.  He will reach age 60 on     XX December 2022.


2.  His record contains a National Guard Bureau (NGB) Form 23A (ARNG Current Annual Statement), which shows he served in the U.S. Marine Corps Reserve from 28 March 1987 through 27 June 2008.  He served on active duty from 14 January through 17 August 2003, during which time he deployed to Iraq in support of Operation Iraqi Freedom. 

3.  On 28 June 2008, he enlisted in the NJARNG, in the rank/grade of staff sergeant (SSG)/E-6.  

4.  He underwent a medical evaluation board (MEB) at Kellar Army Community Hospital, West Point, NY.  His DA Form 3947 (MEB Proceedings) indicates that, after consideration of his clinical records, laboratory findings, and physical examinations, the MEB determined he suffered from post-traumatic stress disorder (PTSD, originating in 2003) and chronic right ankle pain, secondary to retained hardware status/post fracture (originating in 2006).  The board recommended referral to a Physical Evaluation Board (PEB).  

5.  The applicant concurred with the MEB's findings and recommendations when he authenticated the MEB proceeding by affixing his signature in item 25 of the DA Form 3947.  The board's findings and recommendation were approved. 

6.  On 4 February 2011, an informal PEB convened in Washington, DC, to consider his case.  The PEB determined he was physically unfit for continued military service in his grade and specialty, by reason of PTSD and chronic right ankle pain, secondary to retained hardware status/post fracture.  As a result, the PEB recommended a combined 60 percent (%) disability rating and placement on the TDRL.  His DA Form 199 (PEB Proceedings) indicates he responded to the board's findings and recommendation by email, indicating he concurred with the findings and recommendation, and waived a formal hearing of his case; however, his email response is not available for review.

7.  On 1 April 2011, his PEB findings and recommendation were approved.

8.  On 20 April 2011, he was issued a Notification of Eligibility for Retired Pay at Age 60 with 15 Years of Service.  Paragraph 3 of this memorandum provides that in the event he is now, or later becomes, entitled under any other provisions of the law to retired pay from an armed force, he will not be entitled to retired pay under the provisions of Title 10, U.S. Section 1331 (later designated Title 10, U.S. Code, Section 12371 in accordance with note at paragraph 14 below). 

9.  His NGB Form 23A shows that as of the year ending 27 June 2009, he was credited with the completion of 18 years of qualifying service toward nonregular retirement.  

10.  Orders 158-068, issued by the Department of Military and Veterans Affairs, NJARNG, dated 7 June 2011, discharged him from the NJARNG and assigned him to the Permanent Disability Retired List, effective 8 May 2011.  His record contains an NGB Form 22 (Report of Separation and Record of Service) that cites this order as the authority for his separation; however, it lists his effective date of separation as 20 April 2011, not 8 May 2011.

11.  A review of his automated retirement record, within the Integrated Web Services (IWS) application of the U.S. Army Human Resources Command's Soldier Management System, revealed that his retirement data has not been transferred to the U.S. Army Reserve (USAR) data systems from the NJARNG.  Consequently, the Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points) contained within his IWS record is void of any retirement point data.

12.  Army Regulation 135-180 (Army National Guard and Army Reserve – Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a provides, in pertinent part, 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; however, they must: 
1) have 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 a Reserve component Soldier.  The requirement to serve the last 8 years as a Reserve component Soldier was later amended to the last 6 years and on 26 April 2005, this requirement was reduced to zero years.  This regulation also specifies, in part, that 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 or she completes the service.

13.  Army Regulation 135-180, paragraph 2-1b provides, in pertinent part, that in addition, an applicant for retired pay, based on nonregular service, must not be entitled to retired pay from the Armed Forces under any other provision of law.  

14.  Title 10, U.S. Code, section 1176, paragraph (b) (Reserve Members in Active Status), provides that a Reserve enlisted member (serving in an active status), who is selected to be involuntarily separated (other than for physical disability or for cause (emphasis added)), or whose term of enlistment expires and who is denied reenlistment (other than for physical disability or for cause), and who on the date on which the member is to be discharged or transferred from an active status, is entitled to be credited with at least 18 but less than       20 years of service computed under section 12732 of this title, may not be discharged, denied reenlistment, or transferred from an active status without the member’s consent before the earlier of either: 1) the date on which the member is entitled to be credited with 20 years of qualifying service; or 2) the third anniversary of the date on which he would otherwise be discharged or transferred from an active status.

15.  Title 10, U.S. Code, section 1331 (Reference to Chapter 1223) provides that the provisions of law relating to retired pay for non-Regular service are set forth in chapter 1223 of this title (beginning with section 12731).  Prior sections      1331 to 1338 were renumbered sections 12731 to 12738 of this title, respectively.

16.  Title 10, U.S. Code, section 12731, provides the legal age and service requirements for non-Regular retirement.  It states a person is entitled to retired pay upon application if the person has attained the applicable eligibility age, has performed at least 20 years of service computed under section 12732 of this title, and is not entitled to retired pay from an Armed Force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve under any other provision of law.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the issuance of a 20-year letter and transfer to the Retired Reserve.  

2.  The evidence of record shows he underwent an MEB, which recommended referral to a PEB.  He signed his concurrence to the MEB's findings and recommendation.  His records were then referred to a PEB, which reviewed his case on 4 February 2011.  The PEB recommended that he be placed on the TDRL.  According to his DA Form 199, he indicated he concurred with the PEB's findings and recommendation by email.  

3.  On 1 April 2011, his PEB findings and recommendation were approved.  Subsequently, and because he had not yet accumulated 20 qualifying years of service for non-regular retirement eligibility, he was issued a 15-year letter, separated from active service, transferred to the USAR Control Group, and placed on the TDRL.  However, it appears he should not have been issued a 15-year letter as such a letter is only issued to eligible Soldiers separated for a non-duty related condition.

4.  He was not issued a 20-year letter for 2 reasons.  First, his record does not show he completed 20 qualifying years of service for non-regular retirement eligibility, and second, he was entitled to retired pay under another provision of law.  Accordingly, he is not eligible for a 20-year letter and there is no basis for granting the requested relief.  Further, the available evidence does not show he completed 20 qualifying years of service.

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)                                         AR20120003418



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ABCMR Record of Proceedings (cont)                                         AR20120018714



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