IN THE CASE OF:	  

		BOARD DATE:	  12 June 2014

		DOCKET NUMBER:  AR20130017178 


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 that his records be corrected to show he earned 20 qualifying years of creditable service for non-regular retired pay.

2.  The applicant states he sought intently to reenlist in March 2011 and thereafter.  However, the retention noncommissioned officer (NCO) was unavailable and he was led to believe he could drill without a contract.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 28 December 2010
* DA Form 2166-8 (NCO Evaluation Report)
* Headquarters, 99th Regional Support Command Orders 12-129-00065
* Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points) 
* request for Leave and Earnings Statements (LES)
* LES data for 10 years

CONSIDERATION OF EVIDENCE:

1.  His record shows he served on active duty in the Regular Army prior to his service in the U.S. Army Reserve (USAR). 

2.  On 5 November 2004, he immediately reenlisted in the USAR for 6 years, resulting in his having a new expiration term of service (ETS) date of 4 November 2010.

3.  There is no evidence he reenlisted in the USAR at or after his 4 November 2010 ETS date.

4.  He served on active duty in support of Operation Iraqi Freedom during the period 1 December 2009 through 28 December 2010.

5.  He provides a DA Form 2166-8 covering the evaluation period of 16 February 2011 through 15 February 2012.  This form shows his rank as sergeant/pay grade E-5.

6.  Headquarters, 99th Regional Support Command Orders 12-129-00065, dated 8 May 2012, honorably discharged the applicant from the USAR in the rank of sergeant effective 8 May 2012.  Additional instructions on the orders state that he was held beyond his normal discharge date through no fault of his own.

7.  An ARPC Form 249-E, dated 10 May 2013, shows he was credited with 19 years, 8 months, and 26 days of qualifying service for non-regular retirement purposes.

8.  He provides 10 years of LES data from the Defense Finance and Accounting Service (calendar years 1994, 1995, 1996, 1997, 1998, 1999, 2003, 2004, 2001, and 2012) showing the periods for which he was credited with performing duty during those years.

9.  His record is void of any documentation showing whether he requested to reenlist.  It is also void of a Notice of Eligibility for Retired Pay at Age 60 (NOE).

10.  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:  In pertinent part, 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. 

11.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve components (RC) Soldiers.  Chapter 2 provides eligibility criteria and states, in pertinent part, that in order to qualify for non-regular retirement, a member must have attained age 60 and completed a minimum of 20 years of qualifying service.  Paragraph 2-8 defines qualifying service and states, in pertinent part, that an RC Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.

12.  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 one 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.

13.  A current HRC website states that all RC Soldiers who complete the required 20 years or more of qualifying service to become eligible for retired pay at age 60 will receive a 20-year letter as their written NOE.

14.  Army Regulation 600-8-7 (Retirement Services Program), dated 6 June 2010, prescribes the policies for the retirement services and Survivor Benefit Plan (SBP) functions of military personnel management.

	a.  Paragraph 8-11 states all RC Soldiers are eligible for transfer to the Retired Reserve if they have been issued an NOE and are not flagged for adverse action.

	b.  Paragraph 8-12 states the separation authority will not separate Soldiers who have 20 or more qualifying years of service towards a non-regular retirement under the provisions of Title 10, U.S. Code, section 12731(b) (10 USC 12731(b)), unless the Soldier applies for such separation in writing.  Soldiers in this category will be transferred to the USAR Control Group (Retired Reserve) unless they elect separation or discharge without component.

	c.  Paragraph 8-13 states Soldiers eligible for transfer to the Retired Reserve who elect to be discharged without specifying a component must be made aware how a discharge impacts their retired pay.

		(1)  Regardless of the Soldier’s retired pay plan, Soldiers who elect discharge before age 60 will have their high-3 average or final pay computed based on the rates in effect on the date of discharge.

		(2)  However, Soldiers electing transfer to the Retired Reserve will continue to receive credit for longevity.

		(3)  Soldiers electing discharge or separation must receive counseling, in writing, regarding the impact on their retired pay and benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that there may be an error in his qualifying service for non-regular retired pay was carefully considered.  

2.  It appears he was retained in an active status beyond his ETS date due to no fault of his own and that he continued to perform duty.  His retirement point history shows that on his ETS date he was credited with more than 19 years of qualifying service for retirement purposes and that at the time of his discharge on 8 May 2012 he was credited with 19 years, 8 months, and 26 days of qualifying years for non-regular retirement purposes.  There is no evidence in his record that he was not eligible to reenlist before, at, or after his ETS date.  Therefore, he would have been protected by "sanctuary" on the date of his discharge.
  
3.  Given that evidence shows his "early" discharge (prior to achieving 20 qualifying years of service) was an error, it would be appropriate to correct his record by showing he is eligible for non-regular retired pay at age 60 by issuing him an NOE and giving him the option to request transfer to the Retired Reserve in lieu of his 8 May 2012 discharge.

4.  Based on the foregoing, his records should be corrected as recommended below.

	a.  Redistribute excess retirement points from a qualifying retirement year to a non-qualifying retirement year.
	b.  Show he was eligible for retired pay at age 60 by issuing him an NOE with accompanying RC SBP election options package and the offer to voluntarily elect transfer to the Retired Reserves. 

	c.  An 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 is advised 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 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.  Redistributing sufficient excess retirement points from one qualifying retirement year to a non-qualifying retirement year to show it as a qualifying year;  

	b.  showing he is eligible for non-regular retired pay at age 60 by issuing him an NOE (20-year letter) inclusive with an RCSBP election package; and 

	c.  revoking his discharge orders and issuing orders transferring him to the Retired Reserve, if he so elects.


      _______ _   __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)                                         AR20130017178



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ABCMR Record of Proceedings (cont)                                         AR20130017178



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