IN THE CASE OF:	  

		BOARD DATE:	  6 May 2014

		DOCKET NUMBER:  AR20130014093 


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 correction of his records to show he completed 20 years of qualifying service for retired pay at age 60.

2.  He states:

	a.  he was still covered by an extension to his contract on 14 March 2000 in accordance with Army Regulation 140-111 (U.S. Army Reserve Reenlistment Program), chapter 3-2, Table 3-1, Rule K (cited).  

	b.  he had 18 years of qualifying service for retirement as of 26 April 1998 (retirement year ending (RYE) date).

	c.  he was approved on 4 December 1998 for an extension to his contract which changed his expiration of term of service (ETS) to 5 May 2000.

	d.  he would have accrued the 42 days needed for the final year of qualifying service for retirement if he had not been discharged early on 26 April 2000.

	e.  he should have been discharged on 1 May 2000 per Rule K.  

3.  He provides:

* self-authored statement
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment)
* reassignment orders
* letter from Director, Enlisted Personnel Management, U.S. Army Reserve
* letter from the U.S. Army Reserve Personnel Command 
* letters from the National Personnel Records Center
* U.S. Army Human Resources Command (AHRC) Form 249-2-E (Chronological Statement of Retirement Points)
* ARPC Form 249-E (Chronological Statement of Retirement Points)
* four discharge documents
* two letters from HRC, Fort Knox, KY
* discharge orders
* revocation orders
* email correspondence with attachments

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 born on 25 February 1953.  He enlisted in the Regular Army (RA) on 13 October 1971 and was honorably discharged on 18 July 1972 by reason of Convenience of the Government.

3.  He enlisted in the RA again on 19 July 1972 and was released from active duty (REFRAD) on 18 July 1975.  On the following date, he was transferred to the U.S. Army Reserve Control Group (Standby).  

4.  He enlisted in the U.S. Army Reserve on 6 December 1992 for a period of 6 years.  He was ordered to active duty for training (ADT) 20 June 1984 and was released from ADT on 19 April 1984.

5.  He was ordered to active duty on 21 November 1990 in support of Operation Desert Shield/Desert Storm and was REFRAD on 8 June 1991.

6.  On 4 December 1998, he voluntarily extended his current enlistment agreement of 6 December 1992 for a period of 1 year and 5 months.  His new ETS was established as 5 May 2000.

7.  He provided Headquarters, 75th Division (Training Support), Houston, TX, Orders 00-064-005, dated 4 March 2000, which show he was reassigned to the U.S. Army Reserve Control Group (Reinforcement), effective 4 March 2000 by reason of completion of his contractual obligation.  

8.  He provided U.S. Army Reserve Personnel Command, St. Louis, MO, Orders 
D-03-015796, dated 14 March 2000, which show he was discharged from the U.S. Army Reserve, effective 14 March 2000.

9.  He also provided his Chronological Statement of Retirement Points issued on 21 August 2012 which indicates he was credited with 20 years of qualifying service for retired pay at age 60.

10.  In a 6 September 2012 letter, the Chief, Retired Pay Branch, HRC-Fort Knox informed him that his application for retired pay under Title 10, U.S. Code, section 12731 had been approved.  Accordingly, HRC issued him retirement orders, dated 6 September 2012, which show he was retired and placed on the AUS Retired List on 25 February 2013 in the rank of master sergeant/E-8.   

11.  On 9 July 2013, HRC-Fort Knox published orders revoking his placement on the Army of the United States (AUS) Retired List.

12.  On 25 October 2013, an advisory opinion was obtained from the Chief, Retired Pay, HRC-Fort Knox.  The advisory official stated:

	a.  the applicant submitted a retired pay application to their office which included an ARPC Form 249, dated 21 August 2012, showing 20 qualifying years of service.  As a result, the applicant was retired based on this document.

	b.  their office received an inquiry from the Defense Finance and Accounting Service (DFAS) showing the applicant had been discharged prior to attaining 20 years of qualifying service.  After further review, their office confirmed this fact and revoked the applicant's retirement orders.  He was informed of the revocation and was advised to apply to this Board.

	c.  the applicant submitted a reenlistment extension that allowed him to reach his qualifying service, but he was subsequently discharged on 14 March 2000.  He provided this office orders showing he was transferred to the U.S. Army Reserve Control Group (Reinforcement) on 4 March 2000.
   d.  the applicant should be given the opportunity to receive a Reserve retirement.

13.  A copy of the advisory opinion was forwarded to the applicant to allow him to provide comments.  However, he did not provide a response.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant voluntarily extended his enlistment on 4 December 1998 for a period of 1 year and 5 months, making his new ETS 5 May 2000.  Orders were issued which reassigned him to the U.S. Army Reserve Control Group (Reinforcement), effective 4 March 2000.  

2.  However, orders were then published in March 2000 which discharged him from the U.S. Army Reserve, effective 14 March 2000.  

3.  He later submitted his application for retirement including his Chronological Statement of Retirement Points which reflected 20 years of qualifying service for retired pay at age 60.  His request was approved and orders were issued placing him on the AUS Retired List, effective 25 February 2013.

4.  DFAS and HRC reviewed his records and determined he was discharged prior to attaining 20 years of qualifying service.  As a result, the orders placing him on the AUS Retired List were revoked.

5.  Through no fault of the applicant, he was discharged from the U.S. Army Reserve 2 months prior to his ETS on 5 May 2000.  This error resulted in him not being able to attain 20 qualifying years for retired pay at age 60.  

6.  Therefore, it would be equitable to amend his records by:

	a.  correcting Orders D-03-015796, dated 14 March 2000, to show he was discharged from the U.S. Army Reserve, effective 5 May 2000;

   b.  voiding Orders P09-947693RO, dated 9 July 2013, which revoked his orders placing him on the AUS Retired List;

	c.  approving his request for Reserve retired pay at age 60, effective 25 February 2013; and

	d.  paying him retired pay based on the corrections above.  


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 by:

	a.  correcting Orders D-03-015796, dated 14 March 2000, to show he was discharged from the U.S. Army Reserve, effective 5 May 2000;

   b.  voiding Orders P09-947693RO, dated 9 July 2013, which revoked his orders placing him on the AUS Retired List;

	c.  approving his request for Reserve retired pay at age 60, effective 25 February 2013; and

	d.  paying him retired pay based on the corrections above.  



      ____________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)                                         AR20130014093





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ABCMR Record of Proceedings (cont)                                         AR20130014093



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