BOARD DATE:	    15 July 2014

		DOCKET NUMBER:  AR20130019457 


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, through his Member of Congress, reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20120006724, dated 13 November 2012.  Specifically, he requests the issuance of a Notification of Eligibility for Nonregular Retired Pay at Age 60 (15-year letter).

2.  Through his Member of Congress, the applicant states: 

* he is asking for reconsideration of a previous ABCMR decision because the evidence he previously presented was misinterpreted
* when he first appealed to the ABCMR, his application received an incorrect advisory opinion from an official in the Retired Pay Branch at the U.S. Army Human Resources Command (HRC)
* this official provided an advisory opinion full of false statements, as shown by both previous and newly-submitted evidence
* he was part of an inactivating command – he received command-directed reassignment orders into an overstrength position, with a one-year timeframe to find a permanent position
* at the time of his unit's inactivation, and because he had completed        15 years of qualifying service for non-regular retirement, he was given several options
* he elected assignment to another unit in an overstrength capacity for up to one year, for the purpose of obtaining a permanent position and continuing his service in the Selected Reserve
* the option above provided that if a permanent position could not be obtained he had the option to seek early qualification for non-regular retirement at age 60 (15-year letter), provided he transferred to the Retired Reserve
* there were several incorrect orders over the next few years that required amendment or revocation – finally, he was appropriately placed in the Retired Reserve with the correct effective date (1 October 1997)
* he feels an injustice was done with his first appeal to the ABCMR; the evidence submitted with the orders clearly shows he was assigned in an overstrength position, on a temporary basis, until such time that he chose reassignment to the Retired Reserve
* he has been trying to resolve this issue for over a decade and is appealing to the Board to honor the commitment the Army made to him earlier

3.  The applicant provides:

* a timeline of relevant events, including orders and reassignments
* Orders 179-004, issued by Headquarters, 83rd U.S. Army Reserve Command (ARCOM), Columbus, OH on 26 June 1996
* DA Form 4187 (Personnel Action), dated 21 June 1997, with accompanying Addendum C to DA Form 4187
* Orders R241-19, issued by Headquarters, U.S. Army Special Operations Command, Fort Bragg, NC on 29 August 2002
* the advisory opinion issued by an official at HRC, dated 17 May 2012, which was considered in the applicant's original ABCMR case 
* a letter from Major (MAJ) Cxxx R. Hxxxxxxxx (Retired), who commanded the unit he was assigned to when he transferred to the Retired Reserve

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2012006724, dated 13 November 2012.

2.  The applicant provides a letter from MAJ Cxxx R. Hxxxxxxxx (Retired), who commanded the unit he was assigned to when he transferred to the Retired Reserve in 1997.  This letter constitutes new evidence that was not previously considered; therefore, this new evidence warrants consideration by the Board.

3.  The applicant was born on 19 October 1953.  


4.  On 13 November 1992, after prior commissioned service in the U.S. Navy Reserve, he was appointed as a Reserve commissioned officer of the Army, in the rank/grade of captain (CPT)/O-3, with subsequent assignment in the U.S. Army Reserve (USAR).  Upon his appointment, he was assigned to Headquarters, 83rd ARCOM, in Columbus, OH.

5.  On 1 April 1995, he was promoted to the rank/grade of MAJ/O-4.

6.  Orders 179-004, issued by Headquarters, 83rd ARCOM on 26 June 1996, relieved him from his current assignment, due to involuntary unit inactivation, and assigned him to the 15th Psychological Operations (PSYOP) Battalion, Fort Thomas, KY effective 14 September 1996.  These orders show he was assigned to position number 9990 (reassignable overstrength).

7.  On 21 June 1997, the applicant submitted a DA Form 4187, wherein he requested early qualification for retired pay, based on his accumulation of         15 years of qualifying service, and transfer to the Retired Reserve.  

8.  The submitted DA Form 4187 contained an Addendum C, which specified the options available to him vis-à-vis continued service in the Selected Reserve or transfer to a USAR Control Group.  Addendum C begins with the following language:

According to my DARP (Department of the Army Reserve Personnel) Form 249 (Chronological Statement of Retirement Points) and counseling by my unit, I have at least 15 years but less than 20 years of qualifying service.  I understand that due to the inactivation or reorganization of my unit I must be reassigned.  I have been informed that the following options are available to me:

The form then outlines Options A, B, and C.  Option C specifies:

If my assignment to another unit is in an overstrength status I may remain in an overstrength status for a period of up to one year.  My Army Reserve Command will determine my unit of assignment.  Within 1 year I may be assigned to a valid position in a unit and continue Selected Reserve participation.  If a valid position is not available within one year, I may either:  

	1.  Apply for early qualification for Retired Pay at Age 60, provided I transfer to the Retired Reserve; or

	2.  Transfer to the Individual Ready Reserve (IRR)…
Section IV (Remarks) of his DA Form 4187 shows he placed a checkmark next to the selection to indicate he elected (since assignment to another unit was not available) early qualification for retired pay and transfer to the Retired Reserve.  

9.  On 21 June 1997, the same date in which he submitted his request, his commander approved his request by checking the "approved" block and by placing his signature in the appropriate block. 

10.  Several orders were published that affected his status in the USAR.

   a. Orders 256-26, issued by Headquarters, U.S. Army Special Operations Command, Fort Bragg, NC on 13 September 1997, reassigned him from the   15th PSYOP Battalion to the USAR Control Group (Reinforcement), effective      1 October 1997.

   b. Orders R118-01, issued by Headquarters, U.S. Army Special Operations Command, Fort Bragg, NC on 28 April 1999, amended Orders 256-26 by changing his assignment from the USAR Control Group (Reinforcement) to the USAR Control Group (Retired Reserve).

   c. Orders D-07-227743, issued by the U.S. Army Reserve Personnel Command (AR-PERSCOM), St. Louis, MO on 11 July 2002, honorably discharged him from the USAR, effective 1 September 2002.

   d. Orders R241-17, issued by Headquarters, U.S. Army Special Operations Command, Fort Bragg, NC on 29 August 2002, revoked Orders 256-26.

   e. Orders R241-18, issued by Headquarters, U.S. Army Special Operations Command, Fort Bragg, NC on 29 August 2002, revoked Orders R118-01.

   f. Orders R241-19, issued by Headquarters, U.S. Army Special Operations Command, Fort Bragg, NC on 29 August 2002, reassigned him from the        15th PSYOP Battalion to the USAR Control Group (Retired Reserve), effective    1 October 1997 (emphasis added).

   g. Orders D-07-227743R, issued by AR-PERSCOM, St. Louis, MO on         17 February 2004, voided the associated discharge order (D-07-227743), issued on 11 July 2002.

11.  His Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points), dated 17 May 2012, shows that following his retirement year ending (RYE) 23 October 1996, he had been credited with the completion of 15 years of qualifying service for non-regular retirement.
12.  On 19 October 2013, he reached 60 years of age.

13.  In the processing of the original case, an advisory opinion was obtained from the Transition Assistance Management Program (TAMP) Manager, Retired Pay Branch, HRC.  The advisory official opined:

   a. Headquarters, 83rd ARCOM was inactivated under the TAMP.

   b. On 14 September 1996, MAJ [Applicant] was transferred to a permanent position with the 15th POB.  After serving 10 months with this unit, he completed and signed the DA Form 4187 and the Addendum C for transfer to the Retired Reserve.  Although he was eligible for TAMP while assigned to Headquarters, 83rd ARCOM, once he transferred to the 15th POB he was no longer eligible for a 15-year letter.

   c. The 15th POB was not a deactivating unit.  Therefore, the paperwork to receive a 15-year letter and transfer to the Retired Reserve was not authorized.

   d. His file reflects that he opted transfer to the 15th POB rather than elect to be placed in the Retired Reserve and receive a 15-year letter.  

14.  Army Regulation 600-8-6 (Personnel Accounting and Strength Reporting) prescribes the policies and mandatory operating tasks for the personnel accounting and strength reporting function of the Military Personnel System.  Paragraph 3-35 governs the rules for processing the Unit Manning Report (UMR).  Table 3-5 (UMR Codes for Soldiers Not Occupying an Authorized Duty Position), rule 1, provides that the code "9990" applies to those Soldiers considered reassignable overstrength.

15.  Title 10, U.S. Code, section 12731a (10 USC 127321a) provided the legal framework for the Temporary Special Retirement Qualification Authority.  Subsection (a) provided that, during the period 23 October 1992 through 
31 December 2001, a member of the Selected Reserve who completed at least 15, and less than 20, years of qualifying service as of 1 October 1991 could, upon the request of the member, be transferred to the Retired Reserve.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be issued a 15-year letter for the qualifying service he completed throughout his military career so that he can begin receiving retired pay in accordance with the elections he made when he transferred to the Retired Reserve in 1997.

2.  In the original case, an advisory opinion was provided by an official at HRC; however, the advisory opinion contained several incorrect statements that, when considered by the Board, may have negatively affected the outcome of his request.  Specifically, the advisory opinion makes the following points:

   a. On 14 September 1996, MAJ [Applicant] was transferred to a permanent position with the 15th POB.  After serving 10 months with this unit, he completed and signed the DA Form 4187 and the Addendum C for transfer to the Retired Reserve.  Although he was eligible for TAMP while assigned to Headquarters, 83rd ARCOM, once he transferred to the 15th POB he was no longer eligible for a 15-year letter.

   	(1)  MAJ [Applicant] was not transferred to a permanent position.  His reassignment order clearly shows his reassignment resulted from an "involuntary unit inactivation" and his assigned position was "9990," which meant he was temporary overstrength pending assignment to a permanent position. 

   	(2)  Although he was eligible for TAMP while assigned to the 83rd U.S. ARCOM, once he transferred to the 15 POB (PSYOP Battalion) he was no longer eligible for the 15-year letter.  His reassignment was directed by the 83rd ARCOM upon its inactivation.  The 83rd ARCOM published specific guidance to all Soldiers, as evidenced by the instructions contained in Addendum C to his  DA Form 4187.  Since he was not assigned permanently to the 15th PSYOP Battalion, and in accordance with the published guidance he followed, he retained his eligibility to request transfer to the Retired Reserve and the issuance of a 15-year letter.

   b. The 15th POB was not a deactivating unit.  Therefore, the paperwork to receive a 15-year letter and transfer to the Retired Reserve was not authorized.  His assignment was in an overstrength status, in which he could remain for a period up to one year.  He requested reassignment to the Retired Reserve within one year of his date of assignment to the 15th PSYOP Battalion, so the issuance of a 15-year letter and transfer to the Retired Reserve were both valid options.

   c. His file reflects that he opted transfer to the 15th POB rather than elect to be placed in the Retired Reserve and receive a 15-year letter.  There is no evidence that shows he voluntarily requested assignment to the 15th PSYOP Battalion at any time.  In accordance with the reassignment options provided at the time of the 83rd ARCOM's inactivation, he was given the option of accepting transfer to another unit for the purpose of finding a valid position in which to continue his service in the Selected Reserve.  He was not able to find such a position, so he requested early qualification for retired pay and transfer to the Retired Reserve.
3.  The evidence of record confirms he completed 15 years of qualifying service for retired pay prior to 21 June 1997, the date he requested transfer to the Retired Reserve.  

4.  Since he met the eligibility criteria for early retirement in accordance with      10 USC 127321a, and since he complied with all aspects of the reassignment instructions provided at the time of the 83rd ARCOM's inactivation, he is entitled to the issuance of a 15-year letter.

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 is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20120006724, dated 13 November 2012.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a. showing he was eligible for Non-Regular Retirement at Age 60;
      
   b. showing his application for retired pay at age 60 was approved and he was entitled to receive retired pay as of 19 October 2013, upon reaching age 60; and

c. providing him all back retired pay due as a result.  



      __________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)                                         AR20130019457



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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