IN THE CASE OF:  	  

		BOARD DATE:  27 January 2015	  

		DOCKET NUMBER:  AR20140004881 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be granted:

     a.  reinstatement to active duty; 

     b.  a new retirement date of 31 August 2014;

     c.  back pay and allowances minus what he has already received in retirement benefits; and

     d.  a recalculation of his retirement benefits based on the requested retirement date.

2.  Counsel states:

     a.  The District of Columbia Army National Guard (DCARNG) violated Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) chapter procedures by untimely ordering the applicant’s retirement date as 30 November 2013.

     b.  It cannot be disputed that he was eligible for retirement as he had accumulated over 20 years of service.
     c.  His retirement was delayed because of the physical exam and not by his own actions.

     d.  He did not receive notice of his new retirement date until 27 November 2013, which was 3 days before his retirement went into effect.

     e.  He had every reason to believe that his retirement date would be in calendar year 2014 because the DCARNG renewed his security clearance.

3.  Counsel provides:

* Orders
* Memorandum for Record (MFR), subject:  Verification of Security Clearance
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 7652 (Physical Disability Evaluation System Commander’s Performance and Functional Statement)
* Memorandum, subject:  Voluntary Retirement
* Memorandum, subject:  Notification of Amended Retirement Date
* MFR, subject:  Verification of Security Clearance
* Letter from counsel responding to advisory opinion

CONSIDERATION OF EVIDENCE:

1.   After having had prior enlisted service in the U.S. Army, on 25 March 2003 the applicant enlisted in the ARNG.

2.  Effective 15 April 2003, the he was ordered to Full-Time National Guard Duty (FTNGD).

3.  Orders 171-011, issued by Joint Force Headquarters, dated 20 June 2013, released the applicant from active duty and placed him on the retired list with an effective date of 31 August 2013. 

4.  Orders 171-012, issued by Joint Force Headquarters, dated 20 June 2013, reassigned him to the transition point for separation processing with a report date of 31 August 2013.

5.  Orders 308-006, issued by Joint Force Headquarters, DC National Guard dated, 4 November 2013, revoked his retirement orders.

6.  Orders 308-007, issued by Joint Force Headquarters, DC National Guard, dated 4 November 2013, revoked his separation processing orders.
7.  A memorandum, subject:  Voluntary Retirement, dated 13 November 2013 states that he requested to be placed on the retired list effective 31 August 2014.

8.  A memorandum, subject:  Notification of Amended Retirement Date, dated   14 November 2013, notified him that his previously approved retirement date had been amended to 30 November 2013.  He refused to acknowledge receipt and understanding of the memorandum.  This was verified by a witness.

9.  An MFR, subject:  Verification of Security Clearance, dated 18 November 2013, certified that he had been granted a security clearance.  It shows the investigation date was 7 January 2010.

10.  There is no indication that the applicant requested a change of retirement date due to hardship.  

11.  In processing this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau, which recommended disapproval of the applicant's request.  The advisory official stated:

* the applicant indicated he submitted a request for retirement and received orders granting his request
* orders show the retirement effective date as 31 August 2013
* as a result of unforeseen medical issues, he indicated his retirement orders were rescinded or revoked due to his pending PEB
* amendment retirement orders read new effective date of retirement                   30 November 2013
* he submitted a second request for retirement with an effective date of     31 August 2014
* he was provided a notification of amended retirement date memorandum, but he refused to sign acknowledging the notification
* he was aware that his retirement date did not have to change due to a pending medical examination
* the DCARNG, at its own discretion, suspended the processing of his retirement to accommodate the processing of the PEB
* he was aware of his pending release from duty approximately 3 weeks from the effective date
* the DCARNG implemented his release based on the initial approved retirement request within a reasonable amount of time at the completion of the PEB
* The renewal of his security clearance did not play a factor in the process

12.  The applicant was provided a copy of the advisory opinion on 7 November 2014.
13.  On 5 December 2014, counsel responded to the advisory opinion.  He states:

* While the opinion accurately cites the Army regulation, the facts supporting the analysis are incorrect
* The applicant’s retirement request had to be approved before it could be processed
* He submitted a retirement request which was initially approved, however; the orders approving the request were revoked
* He submits that once his retirement orders were revoked, his retirement request was then disapproved
* The DCARNG could not extend his retirement date as his retirement was not approved
* He had a right to submit another request for retirement
* There is nothing in the Army regulation that permits extending a Soldier’s retirement date after the request has been disapproved
* He should not have been forced into retirement on 30 November 2013

14.  Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  This regulation provides the procedures to implement laws and policies governing voluntary retirement of Soldiers of the Army for length of service. 

   a.  Chapter 12 (Retirement for Length of Service), paragraph 12-12 (Applying for Retirement), of this regulation states:
   
        (1)  Submit requests for retirement on a DA Form 2339 (Application for Voluntary Retirement) through the chain of command to the appropriate retirement authority.  The retirement authority will notify Soldier in writing of the effective date of the retirement, if approved.

        (2)  Before applying for retirement, the Soldier should be firm in his/her decision to retire on a certain date. 

        (3)  The retirement authority is authorized to set a minimum time for submission of retirement applications.  Soldiers’ retirement applications will be submitted at least 9 months before the retirement date.
   
   
   
   
   
   	(4)  Personnel officers will -
   
   		(a)  Require each Soldier who wants to apply for retirement to read this chapter.
   
   		(b)  Ensure that each applicant understands section V of this chapter, including the provisions that the Soldier will not be held on active duty beyond the requested retirement date to complete a medical examination.
   
   b.  Paragraph 2-15 of this regulation states the retirement date will not be changed unless, after the application is submitted, events that justify a change in the retirement occur that would cause an extreme hardship to the Soldier or immediate family.  The hardship must have been unforeseen at the time of application.  An application for retirement may not be withdrawn after travel has been performed for retirement.

   c.  Once a retirement order has been issued, it will not be amended or revoked except for extreme compassionate reasons, the best interest of the Army, or when a change in the Soldier’s status prevents retirement on the specified date.
   
   d.  Soldiers retiring after more than 20 years of active duty are required to undergo a medical examination.  The examination will record the Soldier’s state of health and protect the interest of the Soldier and the Government.
   
      e.  The examination will be accomplished (completed) not earlier than 4 months prior to the anticipated date of commencement of transition leave and not later than 1 month before the scheduled date of retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, through his counsel, that he should be reinstated on active duty with a new retirement date of 31 August 2014, and that he should receive back pay and allowances minus what he has already received in retirement benefits.

2.  The evidence shows the applicant had an approved retirement date of 
31 August 2013.  Due to an unforeseen medical issue, the applicant’s retirement orders were rescinded due to a pending PEB.

3.  Upon completion of the PEB, the applicant’s retirement date was amended to 30 November 2013.

4.  The governing regulation states that a retirement date does not have to change based on pending a medical examination.  It also states that once a retirement order has been issued, it will not be amended or revoked except for extreme compassionate reasons, the best interest of the Army, or when a change in the Soldier’s status prevents retirement on the specified date. 

5.  The applicant and counsel's contention that his retirement date was delayed due to a PEB was considered.  However, the DCARNG was not required to rescind or revoke the initial retirement pending a PEB; they did so at their discretion.

6.  The contention that the applicant was only given 3 days’ notice of his new retirement date was considered and found to be without merit.  The applicant was given advance notice of his pending retirement but refused to acknowledge receipt.

7.  The contention that the applicant believed his retirement would be in calendar year 2014 because his security clearance was granted was considered and found to be without merit.

8.  The evidence shows the security clearance investigation began prior to the applicant’s request for retirement.  The results of the investigation just happen to be released prior to the applicant’s retirement date, thus it has no relevance to his retirement date. 

9.  Base on the foregoing, there is neither an error nor an injustice in his records.  As such, he is not entitled to the requested relief.

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)                                         AR20140004881



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140004881



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1