IN THE CASE OF:	  

		BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140008910 


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 Orders P12-912394-A01, issued by the U.S. Army Human Resources Command (HRC) on 24 September 2010, to show he was placed on the Retired List on 8 June 2007 (the date he turned 60) vice 8 June 2008 (the approved extended date). 

2.  The applicant states his records were lost, misplaced, or removed from his personnel records.  He served in the Tennessee Army National Guard (TNARNG).

3.  The applicant provides:

* Approved request for extension beyond age 60
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment)
* Letter, requesting extension beyond age 60
* Notification of Eligibility for Retired Pay at Age 60
* Application for Retired Pay
* Age 60 Retirement Seminar invitation
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* NGB Form 22A (Correction to NGB Form 22)
* Congressional Inquiry
* Email exchange
* Orders P-12-91234, dated 30 December 2009
* Orders P-12-91234-A01, dated 24 September 2010

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's records show he was born on 8 June 1947.

3.  Having had prior service in the U.S. Air Force and the ARNG, he enlisted in the TNARNG on 23 May 1984.  He served through multiple extensions in a variety of assignments.  He was advanced to staff sergeant/E-6 on 5 August 1993.

4.  On 12 May 1999, TNARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

5.  On 22 February 2003, he executed a 4-year and 1-month extension in the ARNG, establishing his separation date as 22 June 2007. 

6.  He entered active duty on 17 March 2005 and subsequently served in Iraq from 24 June 2005 to 21 June 2006.  He was honorably released from active duty on 10 July 2006. 

7.  On 4 October 2006, by letter to his Member of Congress, the TNARNG Deputy Chief of Staff for Personnel stated that after researching the applicant's allegations that he was passed over for promotion, his office found that the applicant did not have sufficient time on his current enlistment to be promoted to sergeant first class (SFC)/E-7.  His chain of command was contacted and they were told the applicant would need to extend his current enlistment to meet the 2-year service requirements for promotion to E-7.  The unit he was assigned to, reorganized and the position he refers to, no longer exists.  

8.  On 19 December 2006, TNARNG published Orders 353-824 advancing him to SFC/E-7 effective 3 November 2005. 

9.  He turned 60 years of age on 8 June 2007.  But, he did not submit an application for retired pay at age 60.  

10.  On 22 June 2007, he executed a 1-year extension of his ARNG enlistment contract.  His separation date was established as 22 June 2008.  

11.  On 24 April 2008, he executed a 1-year extension of his ARNG enlistment contract.  His separation date was established as 22 June 2009. 

12.  On 20 January 2009, TNARNG published Orders 020-811 honorably discharging him from the ARNG and transferring him to the Retired Reserve effective 22 June 2008.  

13.  He was discharged from the ARNG on 22 June 2008 and transferred to the Retired Reserve.  His NGB Form 22 shows he completed 29 years, 4 months, and 21 days of service for pay. 

14.  On 27 November 2009, he submitted a DD Form 108 (Application for Retired Pay Benefits).  

15.  On 30 December 2009, HRC published Orders P12-912394 placing him on the Retired List in his retired grade of SFC effective 8 June 2007, his 60th birthday. 

16.  On 23 July 2010, by letter to HRC, The Adjutant General requested an extension past age 60, not to exceed 8 June 2008, for the applicant.  He stated this extension would allow the applicant to receive proper credit for time served after age 60 toward retirement and retired pay.

	a.  The applicant applied for retirement on 4 December 2009.  His retirement was not processed until 10 January 2010.  Since he did not apply for retirement until 4 December 2009, this led to his first retirement payment being retroactive to June 2007, when he turned 60, in excess of $30,000.  He did not have an age waiver with his retirement request.  As a result, he was put in two statuses: an active member of the ARNG and a Retired member.  

	b.  The applicant understands that because this administrative error in processing his service past age 60 all retired pay he received between 9 June 2007 and 8 June 2008 will be collected by the Defense Finance and Accounting Service (DFAS).  This is a result of him receiving both "active pay and allowances" and "retired pay" at the same time. 

	c.  His situation has been reviewed and this is the best course of action based on pay and allowances received, versus the retired pay he received for the same period.  This action would result in increased retired pay for the applicant due to the 114 retirement points previously omitted and being credited to his pay account.  

	d.  The applicant was contacted on 21 July 2010 about this matter and he selected this course of action as the one he wanted.  This selection was made between himself and the State ARNG G-1 sergeant major.  TNARNG coordinated this action with HRC prior to taking this action. 

17.  On 24 September 2010, subsequent of approval of extension past age 60, HRC published Orders P12-912394-A01 amending the applicant's effective date of placement on the Retired List to be 9 June 2008 vice 8 June 2007.  

18.  On 18 December 2013, NGB issued an NGB Form 22A amending the applicant's NGB Form 22 to show his separation date as 8 vice 22 June 2008.

19.  Title 10, U.S. Code, section 12731 provides the legal age and service requirements for age and service for Reserve non-regular retirement.  It states that a person is entitled, upon application to retired pay if the person has attained the applicable eligibility age, has performed at least 20 years of service computed under section 12732 of this Title; and is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.

20.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.  Paragraph 7-3 addresses rule 2 (Removal for Maximum Age) and states Soldiers not sooner removed for another reason will be removed when they reach maximum age.  The removal date will be the last day of the month in which they reach age 60 for enlisted Soldiers.  This regulation provides for and authorizes numbered exceptions to specific reasons for removal from an active status.  Exceptions to removal rule 2 are numbered 1 (Specific Rules for Warrant Officers), 8 (General Officers), and 15 (Military Technicians – Officers).

21.  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 Soldiers.  Retired Pay is defined as pay granted Soldiers and former Reserve Components Soldiers under Title 10, USC, section 1331, after completion of 20 or more years of qualifying service and upon attaining age 60.  It also states that to be eligible for retired pay an individual does not need to have a military status at the time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service.  

22.  Title 10, USC, sections 12731-12737 authorize retired pay for Reserve Component military service.  To be eligible for retired pay under this law, a reserve Soldier upon attaining age 60 must have completed a minimum of 20 qualifying years.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the ARNG.  He attained age 60 on 7 June 2007.  However, for unknown reasons, he continued his service in the ARNG beyond age 60 and accumulated 114 retirement points.  Additionally, he did not apply for retired pay at age 60 until December 2009, some 2 years after he turned age 60. HRC processed his retired pay and placed him on the Retired List effective 8 June 2007, the date he turned 60 years of age. 

2.  This created a problem.  The applicant had already received ARNG pay and accumulated retirement points and at the same time, he also received retired pay, retroactive to the date he turned 60.  He did not have a waiver to serve beyond age 60.  However, when the error was discovered, and in an effort not to penalize the applicant, the State ARNG coordinated with HRC and submitted an extension past age 60, not to exceed 8 June 2008.  

3.  The request for an extension through 8 June 2008 was in the best interests of the applicant.  This allowed him to keep the ARNG pay between 9 June 2007 and 8 June 2008 while at the same time DFAS recouped any retired pay he received during this same period.  More importantly, however, the applicant received increased retired pay due to the 114 retirement points that he accumulated past age 60.  The correspondence provided by the applicant clearly shows he was contacted and agreed to this course of action. 

4.  Additionally, it is not the Board’s practice to change a record when the end result will cause an applicant to be worse off than when they began the appeals process.  An adjustment of his effective date of retirement from 8 June 2008 to 7 June 2007 would in effect:

* cause him a debt for monies he received as an active member of the ARNG from 9 June 2007 to 8 June 2008
* cause him the loss of any retirement points he received during this period which would result in decreased retired pay
* may affect his eligibility to retire in the grade of E-7 due to the service remaining requirements for promotion to E-7 (3 November 2005)

5.  There is neither an error nor an injustice or inequity 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)                                         AR20140008910



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ABCMR Record of Proceedings (cont)                                         AR20140008910



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