IN THE CASE OF:
BOARD DATE: 23 January 2014
DOCKET NUMBER: AR20130004717
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, adjustment of his retirements points to show he received a "good year" for retirement year ending (RYE) 29 August 2001, award of additional retirement points for the period he was unable to attain "good" years of service for retired pay purposes, and an extension of his mandatory removal date so he can qualify for 20 years of military service.
2. The applicant states, in effect, he received a notice of non-selection for promotion and was informed that he would be discharged no later than 1 January 2001; however, the discharge orders were revoked on 30 October 2000. Unfortunately, he was unable to drill (perform inactive duty training (IDT)) with his unit during the period he was pending discharge and did not receive a "good" year for retirement year 29 August 2000-28 August 2001.
3. The applicant provides copies of his promotion orders to captain (CPT), oath of office; chronological statement of retirement points; notification of promotion status memorandum; second non-selection for promotion memorandum; discharge orders; revocation of discharge orders; notification of selective continuation memorandum; reduced retirement age for reserve component soldiers based on active duty performance memorandum; and Title 32, U.S. Code, section 647.
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 applicant was appointed as a U.S. Army Reserve first lieutenant in the Army Nurse Corps on 29 August 1994. He was credited with qualifying years for Reserve retirement through RYE 28 August 2000.
3. On 30 October 2000, the U.S. Army Reserve Personnel Command, St. Louis, MO, published Orders D-10-058369 discharging the applicant effective 1 January 2001. On 9 October 2001, the discharge orders were revoked and the applicant has completed qualifying years for retirement from RYE 28 August 2002 to the present. He was promoted to the rank of CPT on 1 April 2003.
4. In the processing of this case a staff advisory opinion was obtained from the U.S. Army Reserve Command, Fort Bragg, NC, dated 28 June 2013, which opines that the applicant should be credited with retirement points for 28 IDT assemblies and 12 days of annual training along with the associated pay for RYE 28 August 2001. He should also be credited with 8 additional IDT points for RYE 28 August 2002 and 28 IDT points, 8 membership points, and 14 days of annual training for the remainder of RYE 28 August 2013, which will give the applicant 18 years of qualifying service and place him in sanctuary to complete 20 years of service.
5. The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.
6. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) establishes service that is creditable as qualifying for Reserve retirement purposes. It provides that a Reserve Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.
DISCUSSION AND CONCLUSIONS:
1. The evidence in this case suggests that the applicant was erroneously notified that he was being discharged during RYE 28 August 2001 and thus was denied the opportunity to earn sufficient points for a qualifying year.
2. Inasmuch as his discharge was subsequently revoked because it had been erroneously issued, it would be in the interest of justice and fairness to the applicant to award the him points for 28 IDT assemblies and 12 days of annual training with entitlement to pay and allowances for RYE 28 August 2001.
3. He should also be awarded 8 IDT points for RYE 28 August 2002 and 28 IDT points, 8 membership points, and 14 annual training points for RYE 28 August 2013.
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:
* awarding the applicant retirement points for 28 IDT assemblies and 12 days of annual training for RYE 28 August 2001 with entitlement to pay and allowances
* awarding him points for 8 IDT assemblies for RYE 28 August 2002 and 28 IDT points, 8 membership points, and 14 annual training points for RYE 28 August 2013 with entitlement to pay and allowances
____________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) AR20130004717
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ABCMR Record of Proceedings (cont) AR20130004717
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