BOARD DATE:	  16 January 2014

		DOCKET NUMBER:  AR20130004940 


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 reinstatement of his original retirement year ending (RYE) date of 26 October retroactive to Fiscal Year 2002 and credit for 3 "good" years of service.

2.  The applicant states:

* on 27 October 2000, he was released from active duty and assigned to the U.S. Army Reserve (USAR) Control Group
* on 2 July 2000, he was voluntarily reassigned in the USAR Control Group as an Individual Mobilization Augmentee (IMA)
* he was assigned a RYE date of 26 October by a higher authority and all of his service in the Army was executed based on this date for 10 years
* all retirement points published and all annual training, schools, and duties performed from 2002 through 2012 reveal a RYE date of 26 October for each year
* his duties included a voluntary deployment in support of Operation Joint Forge in 2003
* he provided documentation to the U.S. Army Human Resources Command (HRC) during August 2012 for service credit which encompassed 26 years and included 4 years of Army National Guard (ARNG) service, approximately 10 years of active duty service, and 10 years of USAR service
* on 17 August 2012, he was notified of a change in his RYE date to 24 March
* his analysis of the service computation indicates he lost 3 "good" years of service toward Reserve retirement
* his enlistment contract for his ARNG service, dated 25 March 1986, precipitated the change in his RYE date and was already posted in his records between 1991 and 1994
* HRC advised him that his RYE date would be retroactively adjusted to the beginning of his 1986 military service, not the current year
* attempts at administrative remedies and remediation with HRC during February 2013 resulted in an audit of his retirement points, but the RYE date of 24 March remained

3.  The applicant provides:

* three HRC/Army Reserve Personnel Command (ARPC) Forms 249-E (Chronological Statement of Retirement Points)
* email
* self-authored letter, dated 23 December 2012

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.  On 25 March 1986, the applicant enlisted in the ARNG for an 8-year period.

3.  On 2 June 1990, the applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant.  He was ordered to active duty on 26 September 1990.  On 7 October 2000, he was released from active duty and transferred to the USAR Control Group (Individual Ready Reserve (IRR)).

4.  On 1 June 2003, he was ordered to active duty in support of Operation Joint Forge as an IMA.  He was released from active duty on 26 November 2003 upon completion of his required active service.

5.  A review of his records does not show a break in service.

6.  The applicant provides a self-authored letter to the HRC Personnel Records Division, dated 23 December 2012, in which he states that he was voluntarily reassigned to the USAR Control Group (IMA) on 2 July 2002 and he was assigned a RYE date of 26 October at that time.  All annual training, schools, and duties performed were executed based on the assigned 26 October RYE from Fiscal Year 2002 through 2012.  He states he submitted the required documents to HRC to update his records.  HRC updated his records; however, he discovered a retroactive RYE date change to 24 March.  His service computation analysis revealed a loss of "4" years toward retirement as a result of the RYE date change.

7.  The applicant also provided email to and from HRC.  An email from HRC to the applicant, dated 15 February 2013, shows he was asked to contact the State ARNG in which he served for correction of his National Guard Bureau (NGB) Form 23 (Retirement Credits Record) before additional creditable points could be updated in his records.  His records are void of evidence and he does not provide any evidence showing he complied with this request.

8.  On 13 May 2013, the Chief, Leader Development Division, HRC, provided an advisory opinion.  HRC recommended taking no action on the applicant's request at this time and stated:

	a.  On 17 August 2012, HRC updated the applicant's retirement points per his request.  During the process HRC determined that his RYE had been incorrectly established as 26 October, most likely based on his entry in the USAR from active duty service.  None of his service prior to 2001 was captured.

	b.  HRC updated his RYE based on the guidance set forth in Department of Defense Instruction 1215.07 (Service Credit for Non-Regular Retirement), enclosure 3, section 1(b)2.  Since the applicant entered active service in a Reserve Component on 25 March 1986, his RYE was established as 24 March.  The applicant has not had a break in service; therefore, his RYE would not change from the correct RYE of 24 March.

9.  On 14 March 2013, the applicant was notified of his eligibility for retired pay at age 60 (20-year letter).

10.  On 18 April 2013, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.

11.  On 22 May 2013, the applicant provided a response to the advisory opinion.  He stated that prior to his assignment in the USAR in July 2002, his separation orders designated him as being assigned to the USAR IRR.  Consequently, reassignment to the USAR IMA with the correct RYE date was the responsibility of HRC at the time the assignment orders were published.  His ARNG enlistment contract, dated 25 March 1986, was posted in his electronic records effective 31 December 1994.  His initial entry into military service was documented and should have been considered in determining his correct RYE date.  HRC administratively corrected his RYE date without recourse by him and he should not be penalized for (not) providing military records already in possession of HRC.

12.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records), paragraph 1-4, states that after 1 July 1949, the retirement year beginning date will be the date of initial entry or reentry (after a break in service) into a Reserve Component.

Example 1:  If a Soldier accepted a USAR commission 30 August 1965 and had no break in active status after the initial enlistment in the Reserve on 20 August 1962, the Soldier's retirement year would be 20 August-19 August.

Example 2:  If a Soldier initially entered an active Reserve status in 1968 and was discharged on 21 October 1974, and subsequently reenlists in a USAR unit on 15 March 1978, the retirement year for his current enlistment would be 15 March-14 March.

13.  Army Regulation 140-185, paragraph 1-4, further states the RYE date, once established, will not change as long as the Soldier has continuous service in an active status in a Reserve and/or Regular Component.  It will change when there is a break in active status.  When it is determined that the RYE date shown on the DA Form 1383 (Annual or Terminal Statement of Retirement Points) or any other authorized retirement point credit form is incorrect, a letter requesting correction will be submitted to the appropriate area commander or HRC.

14.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing granting retired pay to Soldiers and former Reserve Component Soldiers.  Chapter 2 provides eligibility criteria and states a member must have attained age 60, completed a minimum of 20 years of qualifying service, and served the last 6 years of his or her qualifying service as a Reserve Component Soldier to qualify for non-Regular retirement.  Paragraph 2-8 defines qualifying service and states a Reserve Component Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.

15.  Title 10, U.S. Code, section 12733, states that for the purpose of computing the retired pay of a person for a non-Regular retirement, the person's years of service and any fractions of such a year are computed by dividing 360 into the sum of the person's:  (1) days of active service; (2) full-time service under specified sections of Title 32, U.S. Code; and (3) 1 day for each retirement point credited (with specified limitations).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he lost 3 qualifying years of service toward Reserve (non-Regular) retirement based on the adjustment of his RYE date and these errors occurred despite reasonable efforts on his part to correct them.

2.  The evidence of record shows the applicant initially enlisted in the ARNG on 25 March 1986 and he has served continuously in an active Reserve status without a break in service.  Since he entered active service in a Reserve Component on 25 March, his RYE was established as 24 March.  During the review process, HRC determined that his RYE had previously been incorrectly established as 26 October.

3.  The evidence of record also shows he was advised to contact NGB for correction of his NGB Form 23; once this action was accomplished, HRC could update his records accordingly.  There is no evidence of record that shows he complied with this request and he has not provided evidence showing he should have been credited with additional retirement points.

4.  On 14 March 2013, the applicant was notified of his eligibility for retired pay at age 60 (20-year letter).  There is no evidence indicating he has not been fully credited with retirement points for duty performed to date.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X___  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20130004940



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ABCMR Record of Proceedings (cont)                                         AR20130004940



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