IN THE CASE OF:	  

		BOARD DATE:	  15 August 2013

		DOCKET NUMBER:  AR20120021168 


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, restoration of 1300 retirement points for five years of service in the U.S. Coast Guard (USCG) to his National Guard Bureau (NGB) Form 23B (Army National Guard (ARNG) Retirement Points History Statement). 

2.  The applicant states:

	a.  After reaching 20 years of service the Arizona ARNG (AZARNG) reclassified his service on his Retirement Points Accounting System/Management (RPAS/RPAM) deleting five years and over 1300 points.  The AZARNG G1 has pointed out in every communication that he needs to appeal to the Army Board for Correction of Military Records (ABCMR) to reverse this matter.  

	b.  He enlisted in the AZARNG on 25 October 1985 and was transferred to the U.S. Army Reserve (USAR) Control Group on 30 June 1986 when he enrolled in the USCG Academy.  At the time, he thought he had been discharged since he was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty), but the Staff Judge Advocate subsequently explained a DD Form 214 can be issued for more than a discharge; it can be issued for a transfer.  

	c.  He did not graduate from the USCG Academy and was disenrolled on 21 December 1989.  He was transferred back to the USAR Control Group as an enlisted member until 13 June 1993.  He was accepted to the Officer Candidate School (OCS) in July 1994.  He graduated OCS in July 1995, but did not immediately accept his commission.  He interstate transferred to the AZARNG in August 1995.  He accepted his commission in April 1997.  He served in the AZARNG from his commissioning date of 11 April 1997 until the present.  

	d.  During this time, he received annual RPAS statements (exact dates inconsistent and not recorded though he has copies of some of time) and occasionally had to sign them as accurate and return them to the G1.  All of these reflected retirement credit for his time at the academy and a retirement year ending (RYE)/anniversary date of 20 May.  He deployed to Iraq between 7 December 2003 and 24 March 2005.  He rotated out of command in October 2006.  

   e.  His RYE date of the year containing 20 good years occurred on 20 May 2011.  Unbeknownst to him on 20 May 2011, the AZARNG deleted retirement credit for all of his time at the USCG Academy according to a memorandum from the new Deputy G1.  The memorandum advised five creditable years of service were reclassified and 1300 retirement points were deleted from his RPAS/RPAM. After meeting with the agency's attorneys, who provided written opinions on the matter, in November 2011 the G1 ordered the points restored to his NGB Form 23 (RPAS).  On 7 February 2012, the AZARNG sent him a memorandum indicating intent to remove the points and years again.  He rebutted this as they requested.  He also sought guidance from the agency's attorneys who were not informed of any of the action. 

	f.  He heard nothing prior to the date of the first anniversary of his RYE date containing 20 years of service.  On 5 July 2012, the G1 informed him that they would not restore any points back onto his RPAS.  Since he wasn't asking for that he contacted the agency's attorneys who informed him that they were not included in anything the G1 has been doing, but that he could consider the current action adequate notice to appeal this matter to the ABCMR.  The substance of his appeal and supporting documents are attached.

	g.  This is a long, fact-intensive, and legally-complex matter.  He is entitled to the points.  It is a gross injustice to revise their opinion now after he has relied upon their other opinions.  The timing of their decision is both suspect and an injustice in itself that prevents him from getting civilian pension credit for the time of service.  He would have never accepted his commission if he had been aware it would cost him his retirement.  It is wrong to change their opinion now, when it is too late to correspondingly change his.  

3.  The applicant provides:

* Personnel Qualification Record
* USCG Academy cadet records
* ARNG enlistment documents
* NGB Form 23 (Report of Separation and Record of Service)
* 1995 OCS Diploma
* ARNG Retirement Credits Record
* June 1996 through 1997- November 2003 RPASs
* 1997 appointment memorandum
* 1999 DD Form 215 (Correction to DD Form 214)
* 2007 college transcript
* 2011 Memorandum for Record
* 2011 Retirement Points memorandum
* 2011 Legal Review of Retirement Points Issue memorandum
* 2011 NGB Form 23B  
* 2012 G1 memorandum
* reply to 2012 G1 memorandum
* 2012 Denial of Retirement Points memorandum
* Memorandum of Points and Authority
* 2012 Petition for Injunction or Writ of Mandumus
* letter of support from The Adjutant General, AZARNG
* previous ABCMR Record of Proceedings
* extracts of the following:

* Title 10, U.S. Code, sections 507 (Service Credit for Senior ROTC Cadets and Midshipmen in Simultaneous Membership Program) and 971 (Service Credit)
* Army Regulation 135-180 (ARNG and Army Reserve-Qualifying Service for Retired Pay and Nonregular Service)
* National Guard Regulation (NGR) 680-2 (Automated Retirement Points Accounting Management)
* CSRS and FERS Handbook, chapter 22 (Creditable Military Service)

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 12 January 1968.  He enlisted in the AZARNG on 26 October 1985.  He was honorably discharged from the AZARNG and as a Reserve of the Army on 29 June 1986 to accept enrollment in the USCG Academy.  His NGB Form 22 shows he completed 8 months and 4 days of net service.  

2.  In a memorandum, dated 5 December 1989, he was advised of his termination as a cadet at the USCG Academy with an effective date of 21 December 1989.  He was released from the USCG Academy on 21 December 1989, by reason of an involuntary resignation-conduct, and was transferred to the USCG Reserve to complete his service obligation.  His DD Form 214 shows he completed 3 years, 5 months, and 22 days of net active service.  

3.  He enlisted in the Wisconsin ARNG (WIARNG) on 21 May 1994, for 3 years.  Orders were published on 21 February 1996 releasing him from the WIARNG and transferring him to the AZARNG.  On 1 April 1996, he was released from the AZARNG, by reason of failure to report to gaining state, and was transferred to the USAR Control Group (Reinforcement).  His service was uncharacterized.  He completed 1 year, 11 months, and 11 days of net service this period.  

4.  He was appointed in the AZARNG, as a second lieutenant, on 20 November 1997.

5.  His RPASs from August 1997 through November 2003 show he was credited with service for retired pay from his RYE of 26 October 1985 through 25 October 1989.

6.  He provides a copy of a Retirements Points memorandum, dated 9 October 2011, which advised he had multiple year's worth of retirement points improperly deducted based upon the time he served at the USCG Academy and those points should be returned to him.  On 11 October 2011, the AZARNG Staff Judge Advocate concurred with re-crediting him with the deleted points.

7.  His military records located in the integrated Personnel Electronic Records Management System (iPERMS) show he is still in an active status in the AZARNG.

8.  The applicant provides copies of the following:

   a.  An NGB Form 23B, dated 13 December 2011, shows he was credited with the following:

		(1)  USCG Reserve – 109 total retirement points and 1 year of creditable service for retired pay from 22 December 1989 to 13 June 1993.

		(2)  3192 total retirement points and 20 years of creditable service for retired pay as of RYE 20 May 2011

	b.  A Memorandum for Record, dated 20 May 2011, pertaining to several discrepancies being found in his records.
	c.  A Retirement Points memorandum, dated 11 February 2012, which advised three years of retirement points were removed from his record without his knowledge and it had been determined he did not receive due process when the retirement points were removed.

	d.  A Retirement Points memorandum, dated 28 February 2012, wherein he requested additional information.

   e.  A Retirements Points memorandum, dated 22 March 2012, wherein he submitted an argument against the deletion of those retirement points.
   
   f.  A Memorandum of Points and Authority which outlines the facts and law pertaining to his award of retirement points during his period in the USCG Academy.
   
   g.  A Denial of Retirement Points memorandum, dated 5 July 2012, wherein the AZARNG G1 denied approval of awarding the retirement points
   
   h.  A Resignation of his commission memorandum, dated 25 July 2012, wherein he requested to resign his commission.

	i.  Three email correspondence pertaining the removal of the retirement points.

   j.  A letter of support from the AZARNG TAG, dated 7 June 2013, wherein the TAG stated:

		(1)  It was unfortunate that this was not discovered and addressed years earlier.  Given the unique circumstances, in the interest of fairness to the individual if within his power, he would credit the applicant with those years of service; however, he did not have the authority to do so.  Due to the timing of the mismatch information and system error since 1994 in both the military and federal technician human resources database system, the applicant lost an opportunity to buy back military service time to apply toward his civilian pension.

		(2)  The net effect was that the applicant was denied the ability to buy back military service that at the time was considered creditable service towards retirement only to have that creditable service taken off his NGB Form 23B years later.  He believes the ABCMR has the authority to support the applicant's application.  The administrative error made during the applicant's accession in 1994 into the ARNG was not the fault of the Soldier and should not be a reason to disapprove his request.

	k.  A Petition for Injunction or Writ of Mandamus, filed on 23 May 2012, wherein he requested a mandatory injunction and temporary restraining order staying the AZARNG from deleting years of service or points from his retirement and ordering the AZARNG to issue his nondiscretionary Notification of Eligibility for Retired Pay at Age 60 letter.  The petition does not specify an approval of his petition.

9.  In April 2013, an advisory opinion was provided by the Chief, Personnel Policy Division, NGB.  The NGB official stated the applicant requests his 1300 RPAS/RPAM points for five years of service while in the USCG be restored to his NGB Form 23B.  The official also stated:

	a.  The applicant believes his 1300 retirement points that he received while serving five years in the USCG were wrongly removed upon entrance into the AZARNG.  He argues that the AZARNG G1 deleted these points on 5 July 2012 when they re-coded his service on his NGB Form 23B from H4 to H2.  He believes that the action taken by the AZARNG is not supported by law or regulation.  However, he should have never been coded H4.  The code H4 did not come into effect until November 2010 and reflects a service academy cadet (no officer appointment).

	b.  Per Retirement Services at the NGB, NGR 680-02, dated 19 August 2011, paragraph 3-6(a) Issuance of Notification of Eligibility (NOE) is as follows, "State RPAM administrators query RPAM on a monthly basis or on an ad hoc basis for specific anniversary year ending date or a particular Soldier to determine who may receive an NOE.  The State MPMO/G (RPMA administrator) will verify all entries with source documents such as a DD Form 214, DD Form 4 (Enlistment/Reenlistment Documents – Armed Forces of the United States), NGB Form 22 (Report of Separation and Record of Service), NGB Form 23 (manual retirement points statement), and the USAR and other Service component retirement records to ensure the current RPAM statement is complete and accurate and that each NOE meets the criteria for issuance.

   c.  The AZARNG was in compliance in reviewing the applicant's RPAM records during the audit in preparation for his 20 year NOE letter on 25 May 2011.  According to the applicant's records and the AZARNG, the applicant's time in the USCG was erroneously coded A5, meaning USCG Regular Service, per his annual statements from 1997.  The AZARNG determined the applicant was actually a Cadet at the USCG and corrected his record to reflect a code of H2.  According to the 1989 version of the NGR 680-2, the code H2 means, "Service as a Cadet at the U.S. Military, U.S. Navy, U.S. Air Force, or USCG Academies.  No retirement points are authorized if commissioned through any source."  Retirement points are authorized if the Soldier reverts to an enlisted status and remains in that status.  The applicant completed OCS in July 1995 and later accepted his commission on 11 April 1997 in the AZARNG.

	d.  As the AZARNG explains, the applicant's situation falls under the guidelines of Army Regulation 135-180 (ARNG and USAR Qualifying Service for Retired Pay Nonregular Service), paragraph 2-9k, dated 1 July 1987, "Time spent as a cadet or midshipmen at the U.S. Military Academy, U.S. Navy Academy, and USCG Academy may be counted as service for basic pay purposes in the computation of pay for enlisted men, but not for commissioned officers except as indicated in paragraph 2-8a (28)."  At the time that the applicant transferred to the USCG, he would have been coded either H2 or A5, which was in accordance with NGR 680-2, dated 15 January 1989.  

   e.  As stated previously, the ARNG did not have a code of H4 until 20 November 2010.  The code H4 would mean that he was a Service Academy Cadet with no appointment.  However, that would be false, because he was appointed later through OCS.  Therefore, changing the applicant's code to H2, Service Academy Cadet with accepting Officer Promotion is valid.  The applicant would not have received retirement points under this code.  The AZARNG removed these retirement points in compliance with Title 10, U.S. Code, section 971; Army Regulation 135-180, paragraph 209(k); and NGR 680-2, paragraph 2-1b(7)(c).
   
   f.  Retirement Services at the NGB with the State's findings concluding that to allow this Soldier to receive those retirement points would be in violation of the foregoing listed regulations as well as Department of Defense (DOD) Instruction 1215-07, enclosure 3, paragraph 1.d(1-2) and DOD Financial Management Regulation, Volume 7a, chapter 1, table 1-1 and Volume 7B, chapter 1, paragraph 010208 A.3(a).
   
   g.  The AZARNG concurs with this recommendation.

10.  On 26 April 2013, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  In his response, dated 26 April 2013, the applicant stated:

	a.  He believes the NGB has been factually misled through direct coordination with the AZARNG G1.  This matter is considerably more complex than the reading it has been given by the NGB.  The questions NOT addressed at all are:

		(1)  His appeal to the equitable authority of the ABMCR.  Every entity involved, including the AZARNG G1, agrees that the years should count for either his civilian retirement or his military retirement.  Because previously they counted for his military retirement he was unable to "buy them back" for his federal civilian retirement as most academy non-graduates can.  Now that the Army has "corrected its mistake" the points no longer count for his military retirement, but he can't buy them back towards a federal retirement because he is no longer a federal employee.  

		(2)  The Army's mistake has cost him his retirement through no fault of his own.  There is no entity with jurisdiction to now award him retirement credit for those years in a federal retirement but the ABCMR can equitably direct that in order to make him whole the years remain creditable in his military retirement.  The AZARNG G1 has said that although they see the injustice, they believe in their interpretation of the regulations and they do not feel that they have equitable authority to remedy the injustice.  This is clearly and solely the purview of the ABCMR.  

	b.  Not only was he counseled this would not have happened when he was commissioned, the Army has made no attempts to show they met their burden of actually doing the required counseling prior to his commissioning.  He relied on the Army's counseling.  It is an injustice for the Army to reverse its opinion years after he was commissioned.  If the Army is able to reverse its opinion then he should be able to do the same by resigning his commission and remaining in an enlisted status until he retired.  He believes he can do that, receive credit for the years in question, and still retire at the highest rank appropriately held.  However, he would be foolish to act on that without having such in writing after the way the G1 has currently reversed its opinion at least four times now.

	c.  He is asking the ABCMR.  As he pointed out, the Board previously stated in a similar case, "Had he retired (or should he retire) as an enlisted person, those two years would have been/will be creditable for retirement purposes."  Docket Number AR20050006417, dated 6 December 2005.  (The applicant in that case was commissioned out of the U.S. Military Academy who wanted pay and retirement service credit for his time spent at the Academy.  The Board denied his requested relief).  The G1 has indicated they are deleting the years for pay and have indicated an intention to engage in a recoupment.  He believes this is inappropriate and in violation of law, regulation, and cited ABCMR opinions.  The AZARNG G1 has never addressed this with enough specific for him to refute.

	d.  The review of his file was opened much earlier than his anniversary date and initially focused on other things such as the validity of his original 

commissioning documents.  The initial discussions to delete the points and years began approximately half a year before his NOE review would have begun.  He has not made a significant issue over why his file was singled out for review because he did not believe it was important for ABCMR purposes.  After his file was singled out for a detailed review, the Deputy G1 stumbled upon a statement on his USCG DD Form 214 that even the USCG admits does not apply in his case.  They then removed his retirement points and sent the email from the G1 to his senior rater.

	e.  The only prohibition to time at a Service Academy being credited for retirement is Title 10, USC, section 971 and as numerous parties including all the attorneys involved have pointed out, this does not apply to his circumstances.  Under NGR 680-2, "If a former cadet serves as an enlisted member, the service as a Service academy cadet is creditable for pay and retirement."  He did exactly this and is entitled to the retirement points and service credit under any fair reading of the law and regulations.

11.  Army Regulation 135-180 sets statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve components Soldiers.  The regulation states in:

   a.  Paragraph 2-9(k) time spent as a cadet or midshipmen at the USCG Academy is not creditable as qualifying service, but may be counted as service for basic pay purposes in the computation of pay for enlisted men, but not for commissioned officers.

   b.  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; and (3) served the last 8 years of his or her qualifying service as a Reserve Component (RC) Soldier.  The requirement to serve the last 8 years in an RC was amended to the last 6 years and is currently zero years.

12.  NGR 680-2 sets the responsibilities and procedures to establish and maintain retirement records.  Paragraph 2-1b(7)(c) states the rules to establish the anniversary year is (or last served as) an enlisted member of a uniformed Service who served as a cadet or midshipmen, but who did not later receive or who does not hold a commission as an officer, service as a cadet or midshipmen at the Service Academy shall be included and counted as active duty to establish 

the member' anniversary year.  Service as a cadet or midshipmen at a Service Academy is always creditable service for enlisted members.

13.  Title 10, USC, section 971 states officers may not count service performed while serving as a cadet or midshipmen.  

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows he served in the AZARNG in an enlisted status from 26 October 1985 through 28 June 1986.  He was discharged and enrolled in the USCG Academy.  He was honorably released from the USCG Academy on 21 December 1989, by reason of an involuntary resignation-conduct.  He completed 3 years, 5 months, and 22 days of net active service.  

2.  He enlisted in the WIARNG on 21 May 1994 and was released on 1 April 1996 and transferred to the USAR.  On 20 November 1997, he was appointed in the AZARNG, as a second lieutenant.  His RPASs show he was credited with service for retired pay from his RYE of 26 October 1985 through 25 October 1989.

3.  In 2011, he was advised that the 1300 retirement points he received while serving in the USCG were removed upon his entry into the AZARNG.  He appealed and his appeal was denied in July 2012.  The NGB has opined that the time he served in the USCG was erroneously coded per his annual statements from 1997.  

4.  His contentions and supporting documents were carefully considered.  However, in accordance with regulatory guidance and law in effect at the time and currently, no retirement points for Academy service are authorized if commissioned through any source.  Soldiers are only authorized retirement points if they revert to an enlisted status and remain in that status.  He completed OCS in July 1995 and was commissioned in the AZARNG on 11 April 1997.  Therefore, he did not remain in an enlisted status for entitlement to retirement points.

5.  He cited a previous ABCMR case in which the applicant, a former cadet at the U.S. Military Academy, requested recalculation of his service time to include the 

time he spent as a cadet for pay and retirement purposes because in accordance with Title 10, USC, section 971, service as a cadet may not be credited to a commissioned officer of the Army or other service.  The Board denied relief in that case.

6.  The ABCMR considers individual applications that are properly brought before it and will decide cases on the evidence of record.  This essentially means that cases are considered and the evidence is judged on its own merits.  Each case that is brought before the Board may have some similarities; however, each usually has some differences and therefore what was done in one case and the outcomes achieved cannot necessarily be applied to another similar or like case. 

7.  However, the applicant’s case is very similar to the prior ABCMR case he provided for comparison, and the ABCMR denied relief in that prior case.

8.  A review of his records located on IPERMS shows he is currently serving in the AZARNG.  There is no evidence he has been discharged and denied retirement.

9.  The law prohibits crediting the applicant’s time at the USCG Academy for retirement credit as an officer.  He stated that if the Army is able to reverse its opinion then he should be able to do the same by resigning his commission and remaining in an enlisted status until he retired.  That is his right if he chooses to do so.  Before he does so he should ensure he would meet all required time-in-grade criteria to be advanced to the highest grade held.

10.  In view of the foregoing, there is no basis for granting him the requested relief.

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)                                         AR20120021168





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ABCMR Record of Proceedings (cont)                                         AR20120021168



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