IN THE CASE OF:	  

		BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130002690 


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 that his records be corrected to show he earned 20 qualifying years of creditable service for non-regular retired pay.  It appears he is also requesting that, based on the Board granting the above, his retired grade be pay grade E-6.

2.  The applicant states it is unjust that, due to his being released from active duty 1 day early, he does not have 20 qualifying years of creditable service for non-regular retired pay.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Leave and Earnings Statement (LES)
* National Guard Bureau (NGB) Form 23B (Army National Guard (ARNG) Retirement Points History Statement)

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 evidence of record shows the applicant was born on 1 November 1946.  

3.  On 23 February 1966, he was inducted into the Army of the United States.  He served until he was honorably released from active duty on 21 February 1968 with 1 year, 11 months, and 29 days of creditable active Federal service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) upon separation.

4.  On 30 August 1978, he enlisted in a USAR Troop Program Unit.

5.  He provides an LES for the period 1-31 December 1980 showing his pay grade as E-6 and a promotion effective date of 26 November 1980.  His pay grade and promotion date are circled.

6.  On 26 November 1980, Headquarters, 3d Battalion, 18th Infantry issued Orders 23-1, promoting him to the rank of staff sergeant (SSG)/pay grade E-6 effective 26 November 1980.  He served continuously through reenlistments until he was separated from the USAR on 19 August 1988.

7.  On 14 March 1991, following a civilian break in service, he enlisted in the Massachusetts (MA) ARNG in the rank of SSG for 3 years.

8.  An ARNG Retirement Points History Statement, dated 27 May 1992, shows at the time he was credited with 11 years, 11 months, and 29 days of qualifying years for non-regular retirement purposes.

9.  On 30 November 1992, the 126th Signal Battalion, (First Corps of Cadets) MAARNG, issued Orders 42-3 reducing him in rank from SSG to sergeant (SGT)/E-5 effective 1 December 1992 due to unsatisfactory participation. 

10.  On 1 December 1992, he was voluntarily transferred via an interstate transfer to the California (CA) ARNG.  On 9 January 1994, he extended his enlistment in the ARNG for 6 years establishing an expiration term of service (ETS) date of 13 March 2000.

11.  On 11 September 1998, Headquarters, 3rd Battalion, 160th Infantry, issued Orders 254-3, reducing the applicant from sergeant/E-5 to specialist/E-4 effective 11 September 1998 due to inefficiency.

12.  An NGB Form 22 (Report of Separation and Record of Service) shows he was separated from the CAARNG effective 13 March 2000 due to expiration of his service obligation.

13.  His record shows that on 13 March 2000, he voluntarily extended his ARNG enlistment for 1 year with a concurrent transfer to the Inactive National Guard (ING).  

14.  On 21 June 2000, the CAARNG issued Orders 173-002 discharging the applicant in the rank of specialist/E-4 effective 13 March 2000.  The orders show he was discharged due to ETS with a reenlistment eligibility (RE) code of 1.

15.  On 6 January 2001, Orders 173-002 were revoked.  On the same date, the CAARNG issued Orders 6-1019 transferring him to the ING effective 14 March 2000.  His NGB Form 22 was amended to reflect his separation date as 13 March 2001.

16.  On 1 May 2001, the CAARNG issued Orders 121-1022 discharging him from the ARNG and as a reserve of the Army effective 13 March 2001.  The orders show he was assigned an RE code of 1.

17.  He provides an ARNG Retirement Points History Statement, dated 5 June 2012.  It shows he was credited with 19 years, 11 months, and 29 days of qualifying years for non-regular retirement purposes.  The statement shows he did not have a Notice of Eligibility for Retired Pay at Age 60 (NOE).

18.  His record is void of any documentation showing whether he did or did not attempt to reenlist.  It is also void of an NOE.

19.  The applicant turned 60 years of age on 1 November 2006. 

20.  Sections 12731 through 12739 of Title 10, U.S. Code (10 USC) 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.

21.  Section 12731(d) of 10 USC, states that the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay.  The notice shall be sent, in writing, to the person concerned within one year after the person completes that service.  Section 12738(a) states that after a person is notified that he or she has completed the years of service required for eligibility for retired pay, the person's eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service unless it resulted directly from the fraud or misrepresentation of the person.

22.  10 USC 1176(b) states, effective 23 October 1992, a Reserve enlisted member serving in an active status who is selected to be involuntarily separated (other than for physical disability or for cause), 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 the following:  If as of the date on which the member is to be discharged or transferred from an active status the member has at least 19, but less than 20, years of service computed under section 12732 of this title— 

	a.  the date on which the member is entitled to be credited with 20 years of service computed under section 12732 of this title; or 

	b.  the second anniversary of the date on which the member would otherwise be discharged or transferred from an active status. 

23.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve components Soldiers.  Chapter 2 provides eligibility criteria and states, in pertinent part, that in order to qualify for non-regular retirement, a member must have attained age 60 and completed a minimum of 20 years of qualifying service.  Paragraph 2-8 defines qualifying service and states, in pertinent part, that a Reserve Component Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.

24.  Army Regulation 135-180 states a person granted retired pay will receive such pay in the highest grade (temporary or permanent) satisfactorily held during his or her entire period of service.  If the Soldier was transferred to the Retired Reserve or discharged on or after 25 February 1975, the retired grade will be the highest grade an enlisted Soldier held while on active duty or in an active Reserve status for at least 185 days or 6 calendar months.  Service in the highest grade will not be deemed satisfactory if it is determined that any of the following factors exist:

	a.  revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to Article 15, Uniform Code of Military Justice, or court-martial, or

	b.  there is information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily.

25.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 7-14e, provides that concurrent with separation from the ARNG and transfer to the Retired Reserve or placement on the Retired List, Soldiers will be retired at the highest enlisted grade satisfactorily held, provided they were not reduced for misconduct or inefficiency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that due to his being released from active duty 1 day early he does not have 20 qualifying years of creditable service for non-regular retired pay was carefully considered.  

2.  His retirement point history shows at the time of his discharge at his ETS on 13 March 2000 he was credited with 19 years, 11 months, and 29 days of qualifying years for non-regular retirement purposes.  Based on his not having been issued an NOE and earlier retirement point summaries he would have been very aware that he needed 1 more qualifying year to reach 20 qualifying years for non-regular retirement.   At that time he would have been protected by "sanctuary," had he only requested a voluntary 1-year extension of his enlistment.  

3.  Effective 13 March 2000, the CAARNG revoked his discharge orders and he was granted a voluntary extension of his ARNG enlistment for 1 year with a concurrent transfer to the inactive ARNG.  Because he was in an inactive status, the "sanctuary" provisions of 10 USC 1176(b) no longer applied to him.  However, even if "sanctuary" had been applicable, there is no evidence to show he was involuntarily prevented from completing the necessary service within a 
2-year period as permitted by law.  Therefore, it appears he voluntarily chose not to continue his military affiliation in an active status at that time.

4.  His early release was not an error nor was it unjust.  Notwithstanding evidence he was eligible to serve the additional time necessary to acquire 20 years of qualifying service for non-regular retired pay purposes and chose not to do so, his retirement point summaries show he earned retirement points above that normally required to earn an NOE.  As an act of leniency, it would be appropriate to show he is eligible for non-regular retired pay at age 60.

5.  Notwithstanding the applicant's service as an SSG/E-6, based on his reductions from pay grade E-6 to E-5 for unsatisfactory participation and further reduction from pay grade E-5 to E-4 for inefficiency he is entitled to placement on the Retired List in the rank/grade of specialist/E-4.

6.  Based on the foregoing, the applicant's records should be corrected as recommended below.

	a.  Redistribute excess retirement points from one retirement to a retirement year which currently is not a qualifying year;

	b.  Showing he was eligible for retired pay at age 60; 

	c.  Place him on the Retired List in retired grade E-4 effective on his 60th birthday;

	d.  Showing he applied for retired pay in a timely manner; and

	e.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant's SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  Redistributing excess retirement points from one retirement year to a retirement year which currently is not a qualifying year;

	b.  Showing the applicant is eligible for retired pay at age 60; 

	c.  Placing him on the Retired List in retired grade E-4 effective on his 60th birthday; and

	d.  Showing he applied for retired pay in a timely manner.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to establishing his retired grade as pay grade E-6. 



      _______ _  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)                                         AR20130002690



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ABCMR Record of Proceedings (cont)                                         AR20130002690



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