IN THE CASE OF:	  

		BOARD DATE:	  29 August 2013

		DOCKET NUMBER:  AR20130000373 


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 award of 35 inactive duty training (IDT) points for the retirement years ending (RYE) 7 March 2011 and 7 March 2012 to prevent any negative impact on his retirement eligibility in the future.  He also seeks clarification of how these retirement points are credited.

2.  The applicant states on 2 August 2010 his Army Board for Correction of Military Records (ABCMR) request was approved and granted him full relief.  The approval packet included a memorandum addressed to the U.S. Army Human Resources Command (HRC), St. Louis, MO, indicating the corrections should be completed no later than 27 September 2010.  Those changes did not occur until 23 September 2011, and he was not accessed into his unit in a drilling status until 3 March 2012.

3.  The applicant provides:

* ABCMR Record of Proceedings in Docket Number AR20090021957, dated 27 July 2010
* ARPC Form 249-E (Chronological Statement of Retirement Points), dated 8 July 2013
* Orders B-09-106456, issued by HRC, Fort Knox, KY, dated 23 September 2011
* Orders C-01-201281, issued by the same command, dated 26 January 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant in the U.S. Army Reserve (USAR) on 9 September 1998.  He was promoted to first lieutenant on 
8 September 2000.

2.  On 11 September 2007, the applicant was honorably discharged from the USAR due to being twice nonselected for promotion to captain (CPT).

3.  The Fiscal Year 2007 Captain Reserve Component/Army Promotion List Selection Board (FY 2007 CPT RC/APL SB) convened during the period 
6-15 November 2007.  As a result, the applicant was selected for promotion to CPT.

4.  In February 2008, the ABCMR determined the applicant had been erroneously discharged from the USAR due to being twice nonselected for promotion.  

5.  On 14 February 2008, the ABCMR, in part, directed that the applicant’s records be submitted to a duly constituted Special Selection Board (SSB) as deemed appropriate for promotion consideration for captain under the 2006 criteria and recommended that if selected, his records be further corrected by showing he was promoted to captain on his date of eligibility, as determined by appropriate Department officials, using the 2006 criteria, provided he was otherwise qualified and met all other prerequisites for promotion. 

6.  On 25 February 2008, the applicant enlisted in the USAR in the grade of E-6 for a period of 4 years in order to minimize his break in service.

7.  On 8 December 2009, the applicant was informed in a memorandum from HRC that an SSB that convened on 23 March 2009 considered him for promotion to CPT under the criteria used by the 2006 RCSB and he was selected for promotion.  The memorandum also confirmed the earliest possible date the applicant could be promoted was 8 February 2007 and that if he was serving in an enlisted status and accepted promotion, the enlistment contract had to be voided through this Board.

8.  The applicant then applied to this Board requesting relief in the form of:

* voiding of his 10 September 2007 discharge from the USAR
* voiding of his 25 February 2008 enlistment contract
* promotion to captain (CPT), effective 8 February 2007
* 
crediting him with qualifying service for retirement from 11 September 2007 through the present in order for his record to show no break in service

9.  On 27 July 2010, this Board favorably considered the applicant's request in Docket Number AR20090021957.  The Board Determination/Recommendation portion of the Record of Proceedings in his case shows the Board recommended granting full relief as follows:

	a.  voiding his 11 September 2007 discharge from the USAR;

	b.  showing he was promoted to CPT effective and with a date of rank of 8 February 2007;

	c.  voiding his 25 February 2008 enlistment in the USAR; 

	d.  crediting him with qualifying years for nonregular retirement (retired pay at age 60) by awarding a total of 50 retirement points, 35 IDT and 15 membership points, for each RYE from 7 March 2007 through 7 March 2010; and

	e.  providing him any back pay and allowances due as a result of these changes.

10.  On 2 August 2010, the Deputy Assistant Secretary of the Army (DASA) for Army Review Boards rendered a memorandum wherein the Commander, HRC was informed that under the authority of Title 10, U.S. Code, section 1552, the recommendation of the ABCMR was approved and directed that all Department of the Army records of the individual concerned be corrected as shown in the Board Determination/Recommendation in the Record of Proceedings in his case. The DASA further requested necessary administrative action be taken to effect the correction of records as indicated no later than 27 September 2010 (emphasis added).

11.  HRC memorandum Subject:  Defective/Unfulfilled Contract Pertaining to [applicant's name], dated 15 December 2010, shows the applicant's enlistment contract cancellation was approved, the contract would be voided, and that his expiration term of service date would be adjusted to Indefinite, Officer.

12.  Orders 11-263-00201, issued by Headquarters, 7th Civil Support Command, dated 20 September 2011, revoked Orders 07-253-00003 issued by the same headquarters, dated 10 September 2007, pertaining to the applicant's discharge from the USAR on 11 September 2007.

13.  On 23 September 2011, a representative of the RC Office of Promotions, HRC, informed the applicant that the SSB that adjourned on 23 March 2009 selected him for promotion to CPT under the 2006 criteria.  The representative also provided him a copy of HRC Orders B-09-106456, dated 23 September 2011, that promoted him to CPT with an effective date and date of rank of
8 February 2007.

14.  HRC Orders C-01-201281, dated 26 January 2012, show the applicant was voluntarily released from the USAR Control Group (Reinforcement) and assigned to the 7th Civil Support Command, effective 23 January 2012, in the rank of CPT.

15.  The applicant's ARPC Form 249E, dated 8 July 2013, shows he was credited with 50 qualifying retirement points for RYEs ending 7 March 2007,
7 March 2008, 7 March 2009, and 7 March 2010.  He was credited with 15 membership points and no IDT points, resulting in a total of 15 points creditable for RYE 7 March 2011.  He was also credited with 15 membership points and
4 IDT points, resulting in a total of 19 points creditable for RYE 7 March 2012.

16.  Title 10, U.S. Code, sections 12731 through 12738 authorize retired pay for Reserve component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more.  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 applicant's contention that his record should be corrected has been carefully considered and found to have merit.

2.  In view of the applicant's selection for promotion to CPT, the Board previously determined it would be appropriate and serve the interest of justice and equity to correct the applicant's record by voiding his 11 September 2007 discharge from the USAR, by showing he was promoted to CPT effective and with a date of rank of 8 February 2007, and by voiding his 25 February 2008 enlistment in the USAR.

3.  On 2 August 2010, the DASA for Army Review Boards informed the Commander, HRC that the recommendation of the ABCMR was approved and directed that all Department of the Army records of the individual concerned be corrected as shown in the Board Determination/Recommendation in the Record of Proceedings in his case.  The DASA further requested necessary administrative action be taken to effect the correction of records as indicated no later than 27 September 2010 (emphasis added).

4.  For no apparent reason, evidence clearly shows it took over a year for HRC to take the directed corrective actions.  As a result, and due to no fault of his own, the applicant was in a "limbo" status with neither a clear military personnel category or unit of assignment with which to drill that resulted in an inability to attain creditable retirement points for RYEs ending 7 March 2011 and 7 March 2012.

5.  In view of the foregoing, the applicant should be credited with qualifying retirement years for nonregular retirement (retired pay at age 60) for each retirement year beginning with RYE 7 March 2011 and continuing through RYE 7 March 2012.  A total of 50 points should be awarded for each RYE by awarding an additional 35 IDT points for RYE 7 March 2011 and an additional 31 IDT points for RYE 7 March 2012.  In addition, he should be provided any back pay and allowances due based on this adjustment.

 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 all Department of the Army records of the individual concerned be corrected by:

	a.  awarding him an additional 35 IDT points for RYE 7 March 2011;

	b.  awarding him an additional 31 IDT points for RYE 7 March 2012; and




	c.  providing him any back pay and allowances due as a result of these changes.



      ___________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)                                         AR20130000373



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ABCMR Record of Proceedings (cont)                                         AR20130000373



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