BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140009162 


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, correction of his record to show he is eligible for a military retirement. 

2.  The applicant states:

* he was required to participate in week-long training periods and ten-day assignments that kept him off his job and a less lucrative civilian paycheck
* he was kept in the position of S-4 well over the normal tour of duty for an average ARNG officer
* he was unable to complete the advanced course and his civilian education required to be promoted to major
* he chose to resign his commission and take an enlisted position to complete 20 years of service
* he communicated his concerns to officer management personnel and advised them that he was taking a break to secure his civilian job and that he would come back as an enlisted member at his unit in Cincinnati, OH
* his job transferred him to Kansas City, MO
* he considered joining a unit in Missouri, but decided it would better serve him to come back to Ohio once a month 
* he contacted Sergeant First Class (SFC) MJ of the Kansas ARNG to let him know his plans; he set him up for a physical to return as an enlisted Soldier
* the results of his physical were sent to the Ohio recruiting station and they were to find him a position
* he checked on the position several times but there always seemed to be a problem and then his paperwork was lost
* when a position was found for him, he was told that he could not accept it
* he would like to appear before the Board at his own expense

3.  The applicant provides:

* self-authored statement
* memorandum, subject:  Service Inquiry
* orders
* three DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* National Guard Bureau (NGB Form 23B) ARNG Retirement Points History Statement
* U.S. Army Human Resources Command (AHRC) Form 249-E (Chronological Statement of Retirement points)
* ARNG Current Annual Statement
* two National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service)
* NGB Form 22-1 (Request/Decline Copy of NGB Form 22, Narrative Reason for Separation)
* excerpt from Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) 
 
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.  After having had prior enlisted service in the U.S. Air Force (USAF) and the USAF Reserve (USAFR), the applicant enlisted in the Ohio ARNG (OHARNG) on 15 February 1979.  On 5 July 1980, he was discharged to accept appointment as a commissioned officer.  On 6 July 1980, he took the oaths of office as a commissioned officer in the OHARNG.
3.  Orders 183-90, issued by the Adjutant General’s Department, Columbus, OH, dated 20 September 1994, show the applicant was separated from the OHARNG with an effective date of 1 September 1994.  The reason for separation was resignation.  He was transferred to the USAR Control Group (Reinforcement).

4.  Orders D-09-580454, issued by the USAR Personnel Center, dated 13 September 1995, show he was discharged from the USAR with an effective date of 13 September 1995. 

5.  An ARNG Retirement Points History Statement, dated 3 December 2013, shows he had accumulated 18 years, 10 months, and 6 days of creditable service for retired pay.

6.  A memorandum, subject:  Service Inquiry, dated 18 April 2014, from the Deputy Director for Personnel, Adjutant General's Department, State of Ohio, stated:

     a.  Based on a thorough review of the archived documents available, the applicant's decision to voluntarily resign in writing from the OHARNG and his subsequent transfer to the USAR Control Group (Reinforcement) left no recourse available to him at that level.

     b.  They validated that he had completed over 18 years of creditable service for retirement upon his resignation from the OHARNG and could have attained 20 years of creditable service for retirement in the USAR.

7.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service), implements statutory authorities governing the granting of “retired pay” to former Reserve Component (RC) Soldiers.  Retired pay is granted to former RC Soldiers after completion of 20 or more years of qualifying service and upon attaining age 60.  Each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.

8.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.  Additionally, applicants may be represented by counsel at their own expense.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  His contention that his record should be corrected to show he is eligible for a military retirement was carefully reconsidered and it was determined that there is insufficient evidence to support this request

3.  He served in the USAF, USAFR, and the ARNG.  His records show he completed over 18 years of qualifying service for non-regular retirement.  By law, in order to be eligible for non-regular retired pay upon attaining age 60, a Reserve Soldier must have completed a minimum of 20 qualifying years of service.

4.  He voluntarily resigned from the ARNG prior to attaining the required 20 qualifying years of service for non-regular retirement.  Unfortunately, he was unable to complete additional qualifying service for retired pay subsequent to his resignation.  The actions he took to regain affiliation with the OHARNG are noted, but these actions alone are not a basis upon which to grant relief.

5.  In the absence of evidence showing he completed the time required by statute to become eligible for non-regular retired pay, there is no basis for granting his request.

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)                                         AR20140009162



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ABCMR Record of Proceedings (cont)                                         AR20140009162



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