IN THE CASE OF:	  

		BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20130003159 


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 reconsideration of the Board's denial of his previous request for the following:

* orders for assignment to the Individual Ready Reserve (IRR) at his current grade and date of rank at the time of his discharge
* orders for assignment to the Retired Reserve
* amendment of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 January 2007 to show assignment to the Retired Reserve

2.  He also requests a personal appearance before the Board.

3.  The applicant states due to the complexities of his situation he believes an
in-person review is essential to ensure he is afforded a full and fair opportunity to be heard.  As a condition of requesting reconsideration, he will present new evidence or argument that was not considered by the Board when it denied his application.  The Board's decision, dated 22 February 2012, summarizes the information provided in his previous request as well as items the Board considered.  The following is a brief discussion of the Board's Consideration of Evidence, specifically items 8, 13, and 14.

	a.  Item 8: "The applicant's DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members), dated 26 September 2006, shows the applicant declined Reserve affiliation."


		(1)  The pre-separation sheet (DD Form 2648, June 2005), specifically block 16 "Reserve Affiliation" does not serve the purpose of determining if a Soldier chooses to affiliate with the Reserve Component (RC), but merely indicates whether or not that Soldier requests information on the benefits of Reserve affiliation.  Marking the "NO" block is not a declination to join a U.S. Army Reserve (USAR) or Army National Guard (ARNG) unit upon separation from active duty.

		(2)  He has been unable to obtain any Army regulation, publication, or official guidance that indicates the DD Form 2648 is to be used for the purposes of recording a Soldier's decision to affiliate with the RC.

	b.  Item 13:  "Army Regulation 140-10 (Assignments, Attachments, Details and Transfers) covers policy and procedures for assigning and transferring USAR Soldiers.  It states transfer to the Retired Reserve is authorized in a number of circumstances, but an eligible Soldier must request transfer."  As declared in his previous application, he was provided with incorrect guidance by Fort Campbell, KY, Reserve Component Career Counselors (RCCC) relative to his eligibility to receive nonregular retirement benefits.  He was advised that even though he had already attained 20 years of combined Active Component (AC) and RC service that he would be required to join an active USAR or ARNG unit for an additional 8 years to qualify for retirement benefits.  As such, he was not provided the opportunity to request transfer to the Retired Reserve at the time of his discharge.

	c.  Item 14:  "Chapter 6 of this regulation (Army Regulation 140-10) provides for the transfer to and from the Retired Reserve.  Paragraph 6-1 (Eligibility) states that an assignment to the Retired Reserve is authorized and that eligible Soldiers must request a transfer to the Retired Reserve if they meet the criteria for such a transfer.  Paragraph 6-4 states the criteria for transfer from the Ready Reserve to the Retired Reserve is based on the Soldier's status."

4.  He states the following related to items 2 and 3 of the Board's Discussions and Conclusions in the previous consideration of his request.

	a.  Item 2: "The evidence of record shows he voluntarily chose not to have Reserve affiliation at the time of his discharge.  In the absence of evidence showing he was improperly discharged or improperly denied the opportunity to request transfer to the IRR or Retired Reserve, there is no basis for granting the requested relief."

	b.  His decision to decline Reserve affiliation at the time of his discharge was based on incorrect guidance by the RCCCs.  The only option provided at the time for him to obtain retirement eligibility was to join an active USAR or ARNG unit for an additional 8 years, resulting in a total of 28 years of combined AC/RC service.

	c.  There was no compelling reason to retain Reserve affiliation through membership in the IRR since (according to the counselors) this membership would not provide the necessary service credit (8 additional years) in order to meet eligibility requirements for retirement benefits.

	d.  Based on public law at the time of his discharge, there was no requirement to contract for additional service with an active RC organization to qualify for nonregular retirement benefits.  He should have been provided with accurate counseling and current policy reference material at the time of his discharge confirming that he had already attained the minimum service credit (20 qualifying years) required for nonregular retirement, and that transfer to the IRR or Retired Reserve vs. discharge would ensure that he continue to receive credit for longevity for retired pay purposes.

5.  Item 3:  "Further, the applicant is advised that the continuation of pay increases for members serving in the Retired Reserve are based on continued availability of those members for recall to an active status in emergency situations.  Therefore, given there is insufficient evidence to show he was unjustly denied the opportunity to request transfer to the Retired Reserve and because he was not available for recall between his discharge and retirement, it would not be appropriate to correct his record solely for the purpose of entitling him to credit for service he did not perform and for pay increases he did not earn."

	a.  His discharge was effective 31 January 2007.  On 1 April 2007, he was informed about the change to public law that removed the last 6 or 8 years of RC service as a requirement to receive nonregular retirement benefits.  On 2 April 2007, he contacted the U.S. Army Human Resources Command (HRC) to inform them of his situation, and to request assistance in correcting his records (this was only 61 days after his discharge).  Since that time he has attempted to obtain orders for assignment to the IRR or Retired Reserve that would have established his availability for recall to an active status in emergency situations.  

	b.  He has been working to resolve this issue since April 2007.  Since August of 2008, he has also been assisted by Mr. DWM, a retired Army officer with
30 years of combined AC, ARNG, and USAR service.  After reviewing his situation, Mr. DWM has taken it upon himself to conduct a comprehensive research into the circumstances surrounding his case.  Enclosed is a statement provided by Mr. DWM that outlines several issues as they relate to the Army's policies, procedures, and regulations for the processing of Soldiers who qualify for nonregular retirement.  He trusts the Board will find Mr. DWM's statement and research thorough, accurate, and relevant to his request for correction of his military records.  Mr. DWM's statement contains new evidence or argument that was not considered by the Board when it denied his original application.  Given Mr. DWM's participation with his case, he asks the Board to please accept this statement as an authorization for the ABCMR to discuss any and all aspects of his previous and future case information with Mr. DWM.

6.  The applicant provides a listing of documents provided and a statement with related documents provided by Mr. DWM.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110015987 on 22 February 2012.

2.  Mr. DWM's statement with associated documents provided by the applicant is new evidence that warrants consideration by this Board.

3.  On 10 February 1994, the applicant was honorably discharged as an enlisted Soldier to accept a commission as a Reserve warrant officer.

4.  On 11 February 1994, he was ordered to extended active duty as a warrant officer one (WO1).

5.  On 13 September 2006, the applicant declined promotion to Chief Warrant Officer (CW4).  On 14 September 2006, his commanding officer recommended approval of the applicant's declination of promotion.

6.  A DA Form 2648, dated 26 September 2006, shows the applicant declined counseling on Reserve affiliation.

7.  Orders 332-0660, issued by Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, KY, dated 28 November 2006, reassigned the applicant to the Fort Campbell Transition Center for transition processing.  The orders state that after processing he would be discharged from the Regular Army.

8.  His record is void of any evidence he requested appointment in the RC when he submitted his resignation.

9.  On 31 January 2007, the applicant was voluntarily discharged from the Regular Army with an honorable discharge for miscellaneous/general reasons.  Item 9 (Command to Which Transferred) of his DD Form 214 shows the entry "N/A."

10.  On 30 August 2007, the applicant was notified of his eligibility for retired pay at age 60 (20-year letter), now referred to as the Notice of Eligibility (NOE).  This notification states his eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of creditable service performed unless it resulted directly from fraud or misrepresentation on his part.

11.  An Army Reserve Personnel Command Form 249-E (Chronological Statement of Retirement Points), dated 5 September 2007, shows he had 20 years, 4 months, and 8 days of service qualifying for nonregular retirement at age 60.

12.  He provides an email, dated 2 April 2007, showing he was in contact with HRC at that time regarding his possible eligibility for nonregular retirement.

13.  Orders Number 353-0600, issued by Headquarters, 101  Airborne Division (Air Assault), Fort Campbell, dated 19 December 2007, rescinded Orders Number 332-0660, dated 28 November 2006, that discharged the applicant.

14.  The applicant stated in an email transmission, dated 24 August 2009, that at the time of his discharge from the AC he was not aware he was eligible for a nonregular retirement.  In yet another email he stated that following a deployment to Iraq in 2005-2006, time spent away from his family persuaded him to resign his commission and he received an honorable discharge in January 2007.  At the time, he was not aware he had 20 plus years of qualifying service for nonregular 
retirement.  In 2007-2008, he worked with HRC and he was able to obtain his NOE and verification of his qualifying service.

15.  A letter from HRC to an elected representative, dated 11 April 2011, states upon review of the applicant's case it was determined he was properly discharged from the AC on 31 January 2007.  At the time of his discharge the applicant clearly marked and signed his pre-separation counseling sheet stating that he did not want Reserve affiliation.  In 2007, the applicant was instructed to have his discharge orders rescinded and to have orders transferring him to the IRR processed.  In 2008-2009, the applicant supplied the orders rescinding his discharge, but he never provided orders placing him in the IRR.  In 2010, the applicant was again instructed that he needed to have orders placing him in the IRR or he needed to request a USAR appointment.  As of the date of the letter the applicant had not submitted documentation placing him in the IRR.  Until that occurs, HRC will be unable to process transfer orders to the Retired Reserve.

16.  A letter from the Office of Special Inquiries at Fort Campbell to an elected representative, dated 1 June 2011, states the applicant separated from the AC on 31 January 2007 after formally requesting resignation through the Officer Separations Branch, HRC.  Based on available information, the applicant did not request an appointment in the USAR or ARNG when he submitted his resignation.  Since the applicant did not have a statutory obligation, he was not automatically transferred to the IRR, a USAR unit, or an ARNG unit upon separation.  In order for him to have been transferred to the IRR, a USAR unit, or an ARNG unit he would have had to speak to an RCCC on Fort Campbell and contract for assignment in either the IRR, a USAR unit, or an ARNG unit.

	a.  The letter further states the Officer Separations Branch, HRC notifies all installation RCCC offices of officers who have approved resignations.  The RCCC then contacts the separating officer to allow the counselors an opportunity to talk to the officer about opportunities in the USAR and ARNG.  During outprocessing all officers resigning their commission are required to physically report to the RCCC offices so they can be informed of these opportunities.

	b.  In order for the applicant to have been transferred to the RC he must have contracted with the IRR, a USAR unit, or an ARNG unit prior to his separation from the AC.  Available records indicated he did not do so.  Furthermore, the Retirement Services Office at Fort Campbell cannot amend or create an order assigning the applicant to the IRR as he did not contract with the IRR prior to his separation.

17.  The applicant provides a statement by Mr. DWM in support of his request.  Mr. DWM stated in paragraph 16 of this statement that as a matter of clarity, on the preseparation counseling checklist (DD Form 2648, version 2005) Block 16 "Reserve Affiliation" is not an indicator nor is its intended purpose to determine or create an official record of whether a Soldier chooses to affiliate or not with the RC.  He continues by stating that marking "NO" in this section cannot be interpreted as a legal declination or acceptance to join a USAR or an ARNG unit or accept nonregular retirement benefits.  

	a.  Mr. DWM further states in paragraph 19 that Mr. JY, Director, Mission Support Element/Fort Campbell informed the applicant that HRC was unable to transfer the applicant to the Retired Reserve because the applicant had not requested a transfer from active duty to the IRR.

	b.  Mr. DWM also provides extensive information reflecting the lack of integration of the 2005 National Defense Authorization Act (NDAA) changes to the law by updating regulations and procedures for respective personnel staff to properly identify, counsel, and process Soldiers separating from active duty who may be already be or could become eligible for nonregular retirement based on the change in NDAA 2005 and the options available to them.

	c.  An Office of the Deputy Chief of Staff, G-1, letter addressed to Mr. DWM states the Integration Policy Branch, Directorate of Military Personnel Management (DMPM) had not updated the regulations corresponding to the change in the RC service requirement from 6 to 0 years.

	d.  Mr. DWM summarizes his statement by stating in November 2005, it became DoD policy that uniform procedures be used to manage all Regular and Reserve duty of service members for crediting and accounting of nonregular retirement.  There is currently no person or section at AC installations that are trained, responsible for, or who understands the new retirement option available or how to calculate and track nonregular service credit for AC Soldiers.  Therefore, AC members are being separated today and are completely unaware of their nonregular retirement options or eligibility.  The applicant was one of those Soldiers.  

18.  In the processing of this case, on 19 February 2013, a letter of support was obtained from the Chief, Army Retirement Services, Office of the G-1, Headquarters, Department of the Army.  The official stated that he believed the earlier ABCMR decision that disapproved the applicant's request for correction of his records must be reviewed in light of the complexity of the "nonregular retirement" process over the past several years, and the fact that the Army personnel system has not been as prompt as it should have been to incorporate the provisions of the 2005 NDAA into their personnel regulations.  The official states the applicant chose to separate from the Army primarily because he was advised that he had to serve an additional 6 years in an RC to qualify to receive nonregular retirement.  That advice was incorrect based on a change to law in the 2005 NDAA.  The applicant was in fact eligible for nonregular retirement at the time of his discharge.  The consequences of the Army's collective institutional slowness should not rest on the shoulders of an individual Soldier.  He states fairness and equity drive him to the conclusion that in the applicant's particular case the ABCMR should conclude the applicant's records should be adjusted to reflect he is fully eligible for nonregular retirement at age 60, that his discharge be voided, and that he should be transferred to the Retired Reserve effective 
31 January 2007.

19.  The letter of support was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 15 March 2013, he stated in his response that he had only minor corrections to offer regarding the length of his service stated by the Chief, Army Retirement Services and the length of RC service required to receive a nonregular retirement.

20.  Army Regulation 135-180, currently in effect, dated 1 July 1987, states that to be eligible for retired pay, an individual need not have a military status at the time of application, but must have:

	a.  Attained age 60.

	b.  Completed a minimum of 20 years of qualifying service.

	c.  Served the last 8 years of his or her qualifying service as an RC Soldier.  The last 8 years of qualifying service need not be the last 8 years of military service, nor do they have to be continuous.

21.  A current HRC website states that all RC Soldiers who complete the required years of service to become eligible for retired pay at age 60 will receive a 20-year letter as their written notification of eligibility.  The Soldier will typically receive the 20-year letter notification during the year following his or her qualifying retirement year.  Normally the letter is issued 90-120 days after the retirement year ending date.  The website further states to be eligible for retired pay at age 60 a Soldier must have completed 20 years or more of qualifying service.  He or she must also meet the criteria listed below for RC service.

* Before 5 October 1994, the member must have served the last 8 qualifying years as a member of an RC
* For the period after 4 October 1994 and before 26 April 2005, the member must have served the last 6 qualifying years as a member of an RC
* After 26 April 2005, the member must have completed 20 qualifying years of service
* the member cannot be entitled under any other provision of law to retired pay from an armed force

The website does not mention AC Soldiers.

22.  Army Regulation 600-8-7 (Retirement Services Program), dated 6 June 2010, prescribes the policies for the retirement services and Survivor Benefit Plan functions of military personnel management.
	a.  Paragraph 8-11 states all RC Soldiers are eligible for transfer to the Retired Reserve if they have been issued an NOE and are not flagged for adverse action.

	b.  Paragraph 8-12 states the separation authority will not separate Soldiers who have 20 or more qualifying years of service towards a nonregular retirement under the provisions of Title 10, U.S. Code, section 12731(b), unless the Soldier applies for such separation in writing.  Soldiers in this category will be transferred to the USAR Control Group (Retired Reserve) unless they elect separation or discharge without component.

	c.  Paragraph 8-13 states Soldiers eligible for transfer to the Retired Reserve, who elect to be discharged without specifying a component, must be made aware how a discharge impacts their retired pay.

		(1)  Regardless of the Soldier’s retired pay plan, Soldiers who elect discharge before age 60 will have their High-3 average or final pay computed based on the rates in effect on the date of discharge.

		(2)  However, Soldiers electing transfer to the Retired Reserve will continue to receive credit for longevity.

		(3)  Soldiers electing discharge or separation must receive counseling, in writing, regarding the impact on their retired pay and benefits.

	d.  Paragraph 9-4 states that Title 10 U.S. Code, section 12731, provides an entitlement of retired pay and benefits to eligible members of the RCs at age 60 for nonregular retirement.  In order to receive retired pay, Soldiers who completed 20 qualifying years on or after 26 April 2005 are no longer required to meet a minimum RC service rule to qualify for retired pay.

23.  DoD Instruction Number 1215.07, Subject:  Service Credit for Nonregular Retirement, dated 24 January 2012, states that to qualify for nonregular retired pay, at or after the age specified in Title 10, U.S. Code, section 12731, a member must have completed 20 years of qualifying service unless otherwise provided by law. 

	a.  For the Service member who completed the years of qualifying service before October 5, 1994, the last 8 years of such qualifying service must have been in an RC.

	b.  For the Service member who completed the years of qualifying service on or after October 5, 1994, but before April 25, 2005, the last 6 years of such qualifying service must have been in an RC.

	c.  For the Service member who completed the years of qualifying service on or after April 25, 2005, there is no minimum RC service requirement.

	d.  The 6 or 8 years of qualifying service are not required to be continuous service. 

24.  Army Regulation 15-185 (ABCMR) governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

25.  Army Regulation 635-5 (Separation Documents) prescribes the entry of the applicable location dependent on the Soldier’s status on transition (table 2-1) for item 9 of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

2.  The applicant contends if he had known at the time of his separation processing from the AC that, in accordance with the law in effect at the time, he was already eligible for nonregular retirement he would have requested assignment to the Retired Reserve.

3.  Evidence indicates he chose to decline a promotion to CW4 and voluntarily resign from the AC.  He contends he based his decision on information provided to him by RCCCs at the installation transition center that he would have to serve an additional minimum period of RC service (6 years in his case) to become eligible for a nonregular retirement.  
	
4.  In support of the applicant's case, Mr. DWM and the Chief, Army Retirement Services have provided extensive and significant information showing the regulatory policy and procedures for inclusion of the NDAA 2005 change of the law removing the minimum RC service requirement as part of the qualifying criteria for a nonregular retirement were in fact lacking at the time of the applicant's discharge from active duty.  When the applicant was discharged in January 2007, he was by law eligible for a non-regular retirement.

5.  His discharge orders were revoked by Orders 353-0600 in December 2007 without replacing them with other orders placing him in another military status, resulting in the applicant presently having no valid discharge orders or valid orders transferring him to the Retired Reserve.  Further, as a consequence of this process HRC issued him an NOE certifying his eligibility for retired pay at age 60, a benefit he would be eligible for even if his discharge from the AC were to remain in force.  However, without assignment to the Retired Reserve he would not have the benefit of longevity pay increases in his retired pay at age 60 or eligibility for "grey area benefits."

6.  It is entirely reasonable to presume that had he known at the time that he was eligible for nonregular retirement at age 60 based on a change in the law, he would have, as he contends, requested assignment to the Retired Reserve instead of marking and signing his pre-separation checklist stating he did not want Reserve affiliation counseling resulting in his voluntary discharge.  Therefore, in the interest of equity and justice based on the change in law, it would be appropriate to grant the applicant relief in this case.  

BOARD VOTE:

____x___  ___x____  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

* deleting from item 9 of his DD Form 214 for the period ending 31 January 2007 the current entry and replacing it with the entry "Retired Reserve."
* issuing orders assigning him to the Retired Reserve effective 1 February 2007 at his current grade and date of rank at the time of his discharge from active duty



      ___________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)                                         AR20130003159



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ABCMR Record of Proceedings (cont)                                         AR20130003159



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