IN THE CASE OF:	  

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140006436 


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, in effect, reconsideration of his previous application to the Board for correction of his ARPC Form 249-2-E (United States Army Reserve (USAR) Personnel Command Chronological Statement of Retirement Points) to reflect his completion of 20 good years of qualifying service for retired pay.
 
2.  The applicant states he was discharged from the Army National Guard (ARNG) for incompatible occupation while he was in sanctuary status.  He was overseas as a contractor at the time of his discharge and he was never afforded the opportunity to represent himself before a board prior to his discharge.  Since he was in sanctuary, his discharge should have been sent to the Secretary of the Army; however, there is no record of such action.  He believes his discharge was incorrectly processed; therefore, he should have his military retirement or be allowed to serve the five months of service needed to attain retirement.

3.  The applicant provides:

* a request to a Member of Congress (MOC)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070014700 on 11 March 2008.

2.  The applicant provides a statement that he submitted to an MOC mentioning his new argument regarding sanctuary which was not previously considered by the Board; therefore, it is considered new evidence and will be considered by the Board.

3.  The applicant was born on 31 December 1951.  He enlisted in the Regular Army on 3 September 1970, and he continued to serve on active duty until he was honorably discharged on 24 April 1979.  

4.  After a break in service, the applicant enlisted in the Arizona ARNG on 2 June 1980.  

5.  On 22 October 1991, he was honorably separated from the ARNG for incompatible occupation and transferred to the U.S. Army Reserve (USAR) Control Group (Standby) to complete his service obligation.

6.  On 17 November 1992, he was honorably discharged from the USAR.  

7.  His record contains an ARNG Retirement Points History Statement, dated       28 February 2008, which shows he completed 19 years, 7 months, and 22 days of qualifying service for retired pay at age 60 as of retirement year ending 22 October 1991.  For the retirement year beginning 2 June 1991 and ending 22 October 1991, he received 6 membership points.  

8.  The applicant attained 60 years of age on 31 December 2011.

9.  The applicant provides a request to a MOC in which he states he has an NGB Form 22 that shows he served 20 years and 13 days service for pay and an ARNG Retirement Points History Statement which shows he completed 19 years, 7 months, and 22 days of qualifying service for retired pay at age 60.  He further states he worked civil service for 3 years.  At the time of his separation, he went to the Middle East for Operation Desert Storm with McDonald Douglas to repair AH-64 components.  He subsequently went to Germany to continue this work.  He applied to the ARNG for correction of his record and he was denied.  He is now over 61 years old, can no longer make up the time, and really needs the retirement benefits which he believes he has earned.

10.  National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-27s, then in effect, authorized Soldiers to be separated from service due to incompatible occupation (employment conflict).  A Soldier must submit documentation to support undue and genuine hardship or conflict caused by membership in the ARNG and civilian occupation. 

11.  Sections 12731 through 12738 of Title 10, U.S. Code, authorize retired pay for Reserve component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  The term "good years" is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.

12.  Section 1176(b) of Title 10, U.S. Code, states that, if on the date prescribed for the involuntary separation (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) from an active status of a reserve enlisted member or officer he is entitled to be credited with at least 18, but less than 20, years of service, he may not be discharged, denied reenlistment or transferred from an active status without his consent before the earlier of the date on which he is entitled to be credited with 20 years of qualifying service or the second anniversary of the date on which he would otherwise be discharged or transferred from an active status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his previous application to the Board for correction of his ARPC Form 249-2-E to reflect completion of 20 good years of qualifying service for retired pay has been carefully reexamined.

2.  Statute provides that a member of a Reserve Component who is on active duty (other than for training) and is within two years of becoming eligible for retired pay under a purely military retirement system may not be involuntarily released from that duty before he becomes eligible for that pay unless the release is approved by the Secretary.  Sanctuary by definition offers refuge and protection from involuntary separation when close to retirement eligibility.

3.  The applicant contends he was discharged from the ARNG for incompatible occupation while he was in sanctuary status.  This contention is incorrect.  The applicant was honorably separated from the ARNG and transferred to the USAR due to incompatible occupation.  However, a Soldier must submit documentation to support undue and genuine hardship or conflict caused by membership in the ARNG and civilian occupation in order to achieve this end.  Therefore, his discharge from the ARNG was voluntary.

4.  The evidence of record fails to show the applicant was involuntarily separated; therefore, he was not eligible for sanctuary.  In light of the foregoing, 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 to amend the decision of the ABCMR set forth in Docket Number AR20070014700, dated 11 March 2008.



      _______ _   __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)                                         AR20140006436





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140006436



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1