IN THE CASE OF:	  

		BOARD DATE:	  17 April 2014

		DOCKET NUMBER:  AR20130012388 


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 50 retirement points for the year 1994 in order to reach 20 qualifying years for retirement pay at the age of 60. 

2.  The applicant states he was an E-7 with 20 years and he was never counseled regarding his retirement.  His expiration of term of service (ETS) was 30 January 1994 and his commander, Colonel (COL) T___, told him he would be involuntarily assigned to the Individual Ready Reserve (IRR).  He was denied his military right.  His unit technician, Major P_____, entered on his ARPC Forms 249-E (Chronological Statement of Retirement Points) only 9 years of qualifying service and sent it to the U.S. Army Reserve Personnel Center (ARPERCEN) in St. Louis, MO.

3.  The applicant provides:

* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 13 December 1992, and related documents
* DA Form 4697 (Department of the Army Report of Survey), dated 
6 January 1993, and related documents
* DA Form 4651-R (Request for Reserve Component Assignment or Attachment), dated 24 January 1993
* an undated memorandum to the applicant, subject:  Reduction Under Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), chapter 7 (Inefficiency)
* a memorandum, dated 6 October 1993, from Headquarters, 81st U.S. Army Reserve Command, East Point, GA, subject:  Administrative Reduction Board
* the applicant's letter, dated 20 December 2011, to the U.S. Army Human Resources Command (HRC)
* ARPC Forms 249-E, dated 4 January 2001 and 22 April 2010
* an Information Paper for Enclosed Documents, dated 1 March 2012, from the Human Resource Service Center, HRC
* orders transferring him between troop program units (TPU) and the U.S. Army Reserve (USAR) Control Group (Reinforcement)
* two undated memoranda from ARPERCEN, St. Louis, MO, subject: Retirement Points Accounting System (RPAS)

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 30 July 1962, he enlisted in the Regular Army (RA) for 3 years.  His records show his date of birth as 2 February 1943.  On 29 July 1965, he was released from active duty and transferred to the USAR Control Group (Reinforcement).  He was discharged from the USAR on 30 June 1968.

3.  On 6 February 1977, he enlisted in the USAR.  He immediately reenlisted on 4 February 1979, on 31 January 1985, and on 31 January 1988.  He was promoted to sergeant first class (SFC)/pay grade E-7 on 15 March 1991.

4.  A DA Form 1574, dated 13 December 1992, is a report of an investigation conducted in accordance with Army Regulation (AR)15-6 (Procedures for Investigating Officers and Boards of Officers).  

	a.  The investigating officer (IO) found no evidence to support any violation of the Uniform Code of Military Justice.  The IO concluded the applicant was not technically proficient in his grade or military occupational specialty (MOS) to carry out his assigned duties and responsibilities.  He demonstrated he lacked the abilities and qualities required and expected of a person of his grade and experience.  The IO recommended the applicant "be involuntarily transferred to the IRR and a copy of the AR 15-6 investigation be included in his microfiche and his DA Form 201 (Military Personnel Records Jacket (MPRJ)) (bar from reenlistment)."

	b.  The appointing authority approved the findings and recommendations of the IO with the following exceptions:

		(1)  He should be processed for reduction to staff sergeant (SSG)/pay grade E-6.

		(2)  He should be involuntarily assigned to an appropriate control group as a SSG.  He had over 20 years for retirement purposes.

		(3)  He should be relieved for cause not later than 20 December 1992 based on this investigation and attached to the 1188th Transportation Terminal Unit (TTU) pending completion of the above actions.

5.  On 8 February 1993, he was assigned to the 1188th TTU.

6.  An undated memorandum notified him of the action to reduce him from SFC to SSG.  An Administrative Reduction Board was convened on 6 November 1993.  Proceedings from this board were not available for review.

7.  On 25 January 1994, he extended his enlistment for 3 months making his new ETS 30 April 1994.  The authority and reason for extension is shown as Army Regulation 140-111, Table 3-1, Rule M.

8.  Headquarters, 81st U.S. Army Reserve Command Orders 012-090, dated 
3 February 1994, provided in:

	a.  Paragraph 1 - reduction from SFC to SSG effective 7 November 1993.

	b.  Paragraph 3 - reassigned him to ARPERCEN (Reinforcement) effective    7 February 1994.  The reason is shown as "voluntary reassignment."

9.  On 12 December 1995, he was discharged from the USAR.

10.  On 20 November 2013, an advisory opinion was received from the Chief, Reserve Component Retirements, HRC.  HRC recommended denial of the applicant's request citing an attached ARPC Form 249-E, dated 25 November 2013, showing he had 19 years of qualifying service.  HRC stated the applicant had sufficient time to show completion of 20 years of service.  There was no available information to add points to his "Retirement Year Ending date of 1994." The applicant was provided a copy of the opinion; however, he did not provide a response or rebuttal.

11.  The applicant provided two ARPC Forms 249-2, dated 4 January 2001, and 22 April 2010 that showed only 9 years of qualifying service for retired pay at age 60.  These forms did not include any service prior to 6 February 1978.

12.  The applicant provided an Information Paper for Enclosed Documents, dated 
1 March 2012, from HRC that included a DARP Form 249-2-E, dated 18 June 1996, that showed only 9 years qualifying service for retired pay at age 60.  There was no service shown prior to 2 February 1978.  It also included an ARPC Form 249-E, dated 8 July 2011, that showed a re-computation of his qualifying years.  This re-computation included service and retirement points as follows:

* retirement years ending (RYE) 29 July 1963, 1964, and 1965 (RA) - 
365 points each
* RYE 29 July 1966 and 1967 - 15 points
* RYE 30 June 1968 - 14 points
* 1 July 1968 - 5 February 1977 - inactive
* RYE re-established as 5 February upon enlistment in USAR on 
6 February 1977
* RYE 5 February 1968 through 5 February 1987 - received 50 retirement points or more
* RYE 5 February 1988 - 15 points
* RYE 5 February 1989 through 5 February 1994 - received 50 retirement points or more
* RYE 5 February 1995 - 15 points
* RYE 12 December 1995 - 13 points

The above provided 19 qualifying years for retirement and 2320 points.

13.  Paragraph 7–10 of Army Regulation 140-158 (Enlisted personnel Classification, Promotion, and Reduction) provides for the reduction of Soldiers for inefficiency.  Inefficiency is defined as a demonstration by an individual of distinctive characteristics which show the inability to perform the duties and responsibilities of the grade and MOS. 

14.  Army Regulation 140-111 (USAR Reenlistment Program) prescribes policies, responsibilities, procedures, and eligibility criteria for USAR reenlistments and extensions.
	a.  Paragraph 1-30a 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 (Title 10 U.S. Code 1176(b)) (10 USC 1176(b)) unless the Soldier consents to removal.  This is commonly known as "sanctuary."

	b.  Paragraph 3-2 states when commanders having custody of Soldiers’ personnel records determine that it is in the best interest of the USAR, they may authorize extensions for the reasons and periods outlined in table 3–1.

	c.  Table 3-1 provides authorized reasons and periods of extensions.


Rule
Reason for extension
Authorized period of extension
K
Soldier has completed 18 or more years of qualifying service for retired pay, but less than 20, and is ineligible to reenlist.  Unless sooner separated for medical or cause, the Soldier may request and will be extended to complete 20 years of qualifying service for retired pay before reaching 
age 60
May be extended for retention in an active status to complete 
20 years of qualifying service for retired pay.  Soldiers having at least 19, but less than 
20 years of qualifying service at ETS may be extended for not more than 2 years.  The extended Soldier must be removed from an active status on the first day of the month following the month in which he or she completes 20 years of qualifying service, regardless of the term of the extension.
M
Soldier is not eligible for reenlistment for reasons cited in this regulation or other directives. However, the disqualification
is under adjudication pending a final determination, or may be waivable, and it is apparent the Soldier’s ETS will occur before adjudication or waiver processing can be finalized.

May be extended for a period not to exceed 
3 months.

15.  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.

16.  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. 

17.  10, U.S. Code, chapter 1223 (Retired Pay for Nonregular Service), section 12731 (Age and Service Requirements), provides that a person is entitled to retired pay upon application if the person is age 60 and has performed at least 20 years of qualifying service.  A qualifying year is determined to be a year in which a minimum of 50 retirement points have been credited for a Reserve member.

DISCUSSION AND CONCLUSIONS:

1.  At the conclusion of the AR 15-6 investigation it is clear the intent was to remove the applicant from an active status.  However, when the appointing authority recommended he be involuntarily assigned to an appropriate control group he stated the applicant had over 20 years for retirement purposes.  This was an error.  There did not appear to be an accurate accounting of the applicant's qualifying years for retirement until 8 July 2011, the date of the ARPC Form 249-E provided by HRC.

2.  His administrative reduction board was convened on 6 November 1993.  Again it was clear the intent was to remove him from an active status in that he was only allowed to extend his enlistment on 24 January 1994 for 3 months under Rule M of Table 3-1 of Army Regulation 140-111.

3.  From the date he enlisted in the USAR, the applicant earned at least 50 points for each RYE, with the exception of RYE 5 February 1988.  This included the RYE's 5 February 1993 and 1994, the period during which the AR 15-6 investigation was being conducted and the administrative reduction board was convened.  Therefore, it is clear the applicant intended to complete the required 20 qualifying years for retirement pay at age 60.

4.  At the time of his transfer to ARPERCEN (Reinforcement) effective                 7 February 1994 he had 19 years of qualifying service for retired pay at age 60.  Therefore, the provisions of Title 10 USC 1176(b) apply.

5.  The opinion from HRC stated there was no available information to add points to his "Retirement Year Ending date of 1994."  However the ARPC Form 249-E shows he had 60 points for the RYE 5 February 1994.  RYE's are shown as year, month, and day, not just year.  In addition, HRC stated he had 19 years of qualifying service but did not recognize the fact that this brought him within the purview of Title 10 USC 1176(b) and he should have been allowed to remain in an active status until he completed 20 qualifying years for retired pay at age 60.

6.  In view of the above, it would be equitable to correct the applicant's records as follows:

	a.  Change his DA Form 4836, dated 25 January 1994, to show he extended for 1 year and 2 months instead of 3 months and show his new ETS as 30 March 1995.  Show the authority and reason for the extension as Army Regulation 140-111, Table 3-1, Rule K.

	b.  Change his ARPC Form 249-E to show 50 retirement points earned for the RYE 5 February 1995.

	c.  Modify his removal from an active status to an effective date of 1 March 1995.

	d.  Show he requested retirement pay at age 60 in a timely manner.

	e.  Pay the applicant any pay and allowances due as a result of the above corrections.

7.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant's SBP status/coverage.  The applicant should be directed to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp. 

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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 as follows:

	a.  Change his DA Form 4836, dated 25 January 1994, to show he extended for 1 year and 2 months instead of 3 months and show his new ETS as 30 March 1995.  Show the authority and reason for the extension as Army Regulation 140-111, Table 3-1, Rule K.

	b.  Change his ARPC Form 249-E to show 50 retirement points (35 inactive duty points and 15 membership points) earned for the RYE 5 February 1995.

	c.  Amend Headquarters, 81st U.S. Army Reserve Command Orders        012-090, dated 3 February 1994, to show the effective date of 1 March 1995 in paragraph 3.

	d.  Show that he requested retired pay at age 60 in a timely manner to effective upon turning age 60.

	e.  Pay any back pay due as a result of the above corrections.  The applicant is responsible for payment of any SBP premiums that may be due and payable since date of receipt of retired pay and will be deducted from benefits payable. 



      _____________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)                                         AR20130012388



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ABCMR Record of Proceedings (cont)                                         AR20130012388



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