BOARD DATE: 19 November 2013
DOCKET NUMBER: AR20130003761
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, correction of his records to show he applied for non-regular retired pay effective 2 April 2012 in a timely manner.
2. The applicant states he applied for non-regular retired pay in August 2012. He reached the age of 60 on 2 January 2013. The 2008 National Defense Authorization Act (NDAA), section 647, amended Title 10, U.S. Code, section 12731 (10 USC 12731) to reduce the eligibility age for retired pay. He is eligible for a 9-month reduction in his non-regular retirement age. Therefore, his qualifying active service from November 2008 through August 2009 results in his being eligible for retired pay effective 2 April 2012. However, he was told that his retirement date was established as 28 August 2012 because his orders could not be backdated to the date of his eligibility for this benefit.
3. The applicant provides:
* two self-authored letters
* Orders 221-012, issued by the Virgin Islands National Guard
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 5 September 2009
* Orders C-08-212034, issued by the U.S. Army Human Resources Command (HRC)
* Orders C-08-212034A01, issued by HRC
* Orders P08-946982A01, issued by HRC
* two emails
* extract (Reserve Retirement) from an internet website
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 2 January 1953. On 30 August 2008, he was ordered to active duty from his Army National Guard (ARNG) unit in support Operation Enduring Freedom under the authority of 10 USC 12302 for a period not to exceed 400 days.
2. On 5 September 2009, he was honorably released from active duty upon completion of his required active service. The DD Form 214 he was issued for this period shows he completed 1 year and 6 days of creditable active service.
3. On 5 May 2010, he was discharged from the ARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve).
4. His retirement points record shows he did not perform any duty for which he would have received pay on or after 1 April 2012.
5. Orders C-08-212034, issued by HRC, dated 17 August 2012, show he was released from the USAR Control Group (Reinforcement) due to reaching maximum age and assigned to the Retired Reserve in the rank of lieutenant colonel effective 31 January 2013.
6. Orders C-08-212034A01, issued by HRC, dated 28 August 2012, amended the effective date of his assignment to the Retired Reserve to 28 August 2012.
7. Orders P08-946982A01, issued by HRC, dated 6 September 2012, placed him on the retired list effective 29 August 2012.
8. National Guard Regulation 680-2 (Automated Retirement Points Accounting Management), dated 19 August 2011, prescribes procedures to establish and maintain retirement records, establish the anniversary year, determine service requirements to qualify for retirement for non-regular service, prepare and issue notifications of eligibility for retired pay for non-regular service, make elections for SBP/RCSBP, apply for retired pay for non-regular service, determine eligibility for reduced retirement age for members who served on active service under certain
authorities, and explains the statute of limitations on applying for retired pay.
a. This regulation states the standard age for eligibility for receipt of retired pay for non-regular service is 60. It further states that section 10 USC 12731(f) authorizes reduced eligibility age for Soldiers of the Ready Reserve who, after 28 January 2008, serve on active duty in support of contingency operations under 10 USC 688, 10 USC 12301(a) and (d), 10 USC 12302, 10 USC 12304, 10 USC 12305, 10 USC 12406, chapter 15 of Title 10, U.S. Code, or active service authorized by the President or the Secretary of Defense under 32 USC 502(f) for purposes of responding to a national emergency declared by the President or supported by federal funds.
b. Soldiers who meet the criteria are eligible for reduced retirement below 60 years of age by 3 months for each aggregate of 90 days (the days need not be consecutive days) performed in any fiscal year after 28 January 2008. A day of active duty may be included in only one aggregate of 90 days for the purpose of reducing retirement age.
9. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing granting "retired pay" to Soldiers and former Reserve Component Soldiers. Paragraph 2-5 states orders will be issued announcing the effective date eligible persons are entitled to retired pay. This pay will begin on the day in which the individual qualifies therefor, or any later date as elected on the application form (DD Form 108), unless the statute of limitations applies.
DISCUSSION AND CONCLUSIONS:
1. Evidence shows the applicant served 3 qualifying aggregate periods of 90 days in a qualifying status during a qualifying period of active duty for eligibility for retired pay at a reduced age based on NDAA 2008 as shown below.
a. His 10 USC 12302 service from 30 August 2008 through 30 September 2008 does not qualify for a reduction in his retirement age due to being less than 90 aggregate days in any fiscal year.
b. His 10 USC 12302 service from 1 October 2008 through 5 September 2009 covers three full 90-day aggregate periods of qualifying service. Therefore, he is eligible for and entitled to a 9-month reduction to his eligibility date for non-regular retired pay.
c. He reached age 60 on 2 January 2013. Subtracting 9 months from this date entitles him to retired pay effective 2 April 2012.
2. His retirement points record shows he did not perform any duty for which he would have received pay on or after 1 April 2012.
3. In view of the foregoing, he is entitled to have:
a. Orders C-08-212034, issued by HRC, dated 17 August 2012, amended to show he was released from the USAR Control Group (Reinforcement) and assigned to the Retired Reserve effective 1 April 2012.
b. Orders P08-946982A01, issued by HRC, dated 6 September 2012, amended to show he was placed on the retired list effective 2 April 2012.
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 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. amending Orders C-08-212034, issued by HRC, dated 17 August 2012, to show he was assigned to the Retired Reserve effective 1 April 2012;
b. amending Orders P08-946982A01, issued by HRC, dated 6 September 2012, to show he was placed on the retired list effective 4 April 2012; and
c. paying him any back retired pay due him as a result of the above 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) AR20130003761
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