DOCKET NUMBER:  AR20130011427 


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 record to show he successfully completed 20 years of service qualifying for non-regular retired pay. 

2.  The applicant states he was erroneously discharged from the Army National Guard (ARNG) before he was allowed to complete 20 years for retirement eligibility.  He states he requested a transfer to the Inactive National Guard (ING) for 1 year to resolve family and employment issues.  He then requested a return to an active status after those issues were resolved.  Orders were issued transferring him back to an active status.  Those orders were then revoked, in effect transferring him back into the ING.  He states that he was attending drill during that period. 

3.  He further states the ARNG subsequently discharged him and transferred him to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  At the time he had served 19 years and 1 day of qualifying service.  His ARNG retirement statement should be corrected to show he had 20 years of qualifying service for non-regular retirement purposes.  He states that with the number of years he served and the error of being discharged he feels he should be entitled to a 
20-year letter (Notice of Eligibility for Retired Pay at Age 60) and retired pay.  

4.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 29 September 1970

* his request for transfer to the ING
* his letter to his commander requesting transfer to the ING
* commander's request for the applicant's transfer to the ING
* Ohio Adjutant General's Department Orders 153-22
* applicant's letter requesting reinstatement in an active status
* commander's request for applicant's return to an active status
* commander's request for approval of applicant's request for return to an active status
* Ohio Adjutant General's Department Orders 242-9
* Ohio Adjutant General's Department Orders 247-68
* ARNG Retirement Points History Statement
* National Guard Bureau (NGB) Form 22 (NGB Report of Separation and Record of Service) for the period ending 1 January 1990
* Ohio Adjutant General's Department Orders 53-99
* Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points)
* Ohio Adjutant General's Department letter, subject: Notification of Eligibility (NOE) for Retired Pay, dated 17 May 2013

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.  His records show he served on active duty prior to his enlistment in the ARNG on 29 November 1976.

3.  His record shows in June 1988 his desire to transfer to the ING was discussed and it was recommended he take a position of lower responsibility in order to complete the remaining time to achieve eligibility for retired pay.  At the time he had completed more than 18 years of qualifying service.  However, after consideration of that option he elected to continue with a request to transfer to the ING to resolve family and employment issues.

4.  On 9 August 1988, Ohio Adjutant General's Department Orders 153-22 transferred him to the ING effective 1 October 1988. 

5.  On 19 November 1989, he requested to be returned to an active status in the Ohio ARNG effective 1 December 1989.

6.  On 18 December 1989, Ohio Adjutant General's Department Orders 242-9 transferred him from the ING to an active status in an ARNG unit effective 1 December 1989.

7.  His record shows he submitted a letter to his commanding officer, dated 8 December 1989, stating that with regret he was requesting to be discharged from the Ohio ARNG effective immediately.  Being a supervisor at his civilian position required him to work 7 days per week for the remainder of 1990.  He would lose approximately $400 on the weekends he would have drilled.

8.  On 11 December 1989, his commanding officer stated in a memorandum of endorsement that the applicant had come to the unit on 9 December 1989 with a letter stating that it was with regret but he would be unable to return back to an active status.  His commander requested the applicant be discharged as soon as possible.

9.  On 26 December 1989, Ohio Adjutant General's Department Orders 247-68 revoked Orders 242-9.

10.  On 19 March 1990, Ohio Adjutant General's Department Orders 53-99 discharged him from the ARNG and assigned him to the USAR Control Group (Reinforcement) effective 1 January 1990.

11.  He provides an Ohio Adjutant General's Department memorandum, subject: NOE for Retired Pay, dated 17 May 2013, stating at the time of his separation he had completed 19 years and 1 day of service for retired pay.  They were unable to issue him an NOE for retired pay because he didn't have 20 years of service for retired pay.  The letter further states that he may have been erroneously discharged contrary to the provisions of Title 10 U.S. Code Section 1176  (10 USC 1176).
 
12.  He provides an ARNG Retirement Points History Statement showing he had 19 years and 1 day of qualifying service for non-regular retired pay purposes.

13.  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.
	a.  Paragraph 2-8 describes qualifying service as service performed in an active status in a Reserve Component or in active Federal service.  After 30 June 1949, a Reserve member must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service.

	b.  Paragraph 2-9 states that active status in the Ready Reserve, the Standby Reserve, and the Active National Guard after 30 June 1949, but insufficient retirement points earned for such service to be credited as qualifying service, is not creditable as qualifying service. 

14.  Army Regulation 140-111 (USAR Reenlistment Program) states a Soldier assigned to the Selected or Ready Reserve or the Standby Reserve (Active Status List) is serving in an active status.  The retention of an enlisted Soldier selected for involuntary separation (other than for physical disability or for cause) or denied reenlistment upon expiration of term of enlistment (other than for physical disability or for cause) in an active status after completion of 18 or more years but less than 20 years of qualifying service for retired pay is required by law (10 USC 1176(b)) unless the Soldier consents to removal.  This is commonly known as "sanctuary."

15.  Sections 12731 through 12739 of 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.

16.  10 USC 12731(d), 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 1 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.

17.  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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, there is no evidence he was erroneously discharged before he was allowed to complete 20 years for retirement eligibility.  In fact, evidence shows he voluntarily requested immediate discharge from the ARNG.  At the time, he had completed 19 years and 1 day of qualifying service.

2.  He was discharged effective 1 January 1990, prior to the existence of the "sanctuary" provision under 10 USC 1176(b).  Therefore, he was not protected under this provision of the law.  Even if the law had been in effect at the time of his discharge, it would not have applied to him because he voluntarily requested discharge from the ARNG.  Moreover, granting him the requested relief would be affording him benefits which he did not earn and that were not afforded other Soldiers.

3.  In view of the foregoing, there is an insufficient basis for granting the applicant's request.

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 that 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)                                         AR20130011427



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130011427



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1