IN THE CASE OF:	  

		BOARD DATE:	  22 October 2014

		DOCKET NUMBER:  AR20140012136 


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 retirement from the U.S. Army Reserve (USAR), in the rank of colonel (COL), nine months earlier than age 60 based on his one-year deployment and due to the early drop law spelled out in the National Defense Authorization Act (NDAA) of 2008.  

2.  The applicant states:

   a.  The U.S. Army Human Resources Command (HRC) stated that he would be retired in the rank of lieutenant colonel (LTC) because he had not met the
3-year time in grade (TIG) requirement.  He believes this decision should be overturned and he should be retired 9 months earlier, in the rank of COL.  HRC's position is that in order for the Soldier to retire in the rank of COL he must have 3 years (TIG), unless the Soldier involuntarily retires.  If the Soldier is involuntarily retired, he or she must complete at least 180 days in order to retire at the highest grade satisfactorily held.  The key word is "involuntarily."

	b.  HRC interprets Soldiers taking an adjustment authorized by the NDAA 2008 for Reservists as "voluntary."  The Army G-1 also gave the same answer but declined to render a justification beyond their interpretation of the law.  An investigation conducted by the HRC Inspector General (IG) was unable to find any law, regulation, or interpretation and strongly concurred with his belief that nothing in the early drop law alludes to the Army G-1's interpretation of the NDAA 2008 benefit as a voluntary action.  The Army G-1's decision thus affects his actions concerning his voluntary retirement to include rules for determining grade at retirement per Title 10, U.S. Code (USC), section 1370.  He finds it hard to believe that after 38 years of service to the nation he is being denied the right to retire at his current rank of COL because he had not completed 3 years of TIG at that grade and he sees no logic in that. 

3.  The applicant provides:

* Final response from the HRC IG
* Retirement Points Statement 
* Promotion orders
* Active duty orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Résumé of Service Career
* Early Drop Law

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born in December 1954.  He served in an enlisted status in the Regular Army from May 1975 to May 1978 and in the USAR.  

2.  He completed the Officer Candidate Reserve Component Course and he was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 26 October 1984.  He also completed the infantry officer basic course.  He served in a variety of assignments and he was promoted to the rank of LTC on 12 April 2000.

3.  On 25 June 1997, HRC issued him a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter). 

4.  He entered active duty on 6 May 2011, he was promoted to the rank of COL on 17 December 2011, and he was honorably released from active duty on
4 May 2012. 

5.  On 4 March 2013, Headquarters, 88th Regional Support Command, published Orders 13-063-00032 transferring him to the USAR Control Group (Reinforcement or Individual Ready Reserve (IRR)).  

6.  On 11 June 2014, HRC published Orders C-06-408308 releasing him from the USAR Control Group (Reinforcement) and transferring him to the Retired Reserve, effective 1 November 2014, by reason of having completed maximum authorized years of service. 

7.  It appears he sought assistance from the HRC IG in determining his retired rank/grade.  As such, on 25 February 2014, an official at the HRC IG informed him: 

	a.  This is a final response to your request, dated 12 December "2014" regarding HRC's interpretation of the Reserve Early Retirement policy spelled out in the NDAA of 2008.  Specifically, that you are being denied the right to retire at your current grade 270 days earlier than your Mandatory Removal Date (MRD) at age 60 because of your 1-year deployment.  Your inquiry asks why the involuntary rule which governs age or MRD retirements does not apply to the Early Drop Law as well.  Specifically, in your case, you argue that as a Soldier who has been mobilized for over a year, you are unable to retire 9 months earlier because you don't have your full 3 years TIG completed and forfeit your benefit.  By the way, after you wait until you reach your MRD at age 60, you still have not fulfilled your 3-year TIG commitment; but now HRC policy says it doesn't matter.

	b.  An investigation revealed that it is HRC's policy that in order to retire at the rank of COL the Soldier must have 3 years TIG, unless involuntarily retired.  If the Soldier is involuntarily retired or discharged, the Soldier must complete at least 180 days in order to retire at the highest grade satisfactorily held.  The key word is involuntary.  HRC interprets Soldiers taking the adjustment authorized by NDAA 2008 for Reservists as voluntary.  The IG official was not able to find any law, regulation or policy that directed this interpretation.  Congress authorized and the President approved giving Reservists credit for time served on active duty to reduce the MRD incrementally for time served.  He asked the Army G-1 for their policy interpretation and received the same answer, that this law was voluntary on the part of the Soldier.  The Army G-1 declined, however, to provide any reasoning behind their interpretation.

	c.  This interpretation thus affects any actions concerning involuntary retirement to include rules for determining grade at retirement per Title 10, USC, section 1370.  Since the Army G-1 interpreted the action as voluntary, the IG official could take no further action.  HRC is a subordinate organization to Army G-1 and the HRC's mission is execution, not policy interpretation.  

	d.  The IG official absolutely concurs with him that nothing in the current law alludes to interpreting the NDAA 2008 benefit as a voluntary action.  In fact, nowhere in the law does it mention voluntary separation; it specifically addresses adjusting the 60-year Reserve retirement to credit service during contingency operations.  The exact wording of Section 647(2)(B) of NDAA 2008 states, "the eligibility age for the purposes of subsection (a)(1) 'shall' be reduced below 60 years of age by 3 months for each aggregate of 90 days served."  When read within the text of the law, the word "shall," is defined as mandatory, hence an involuntary action when used in laws, regulations, or directives.  A cursory legal review from the TACOM (Tank Automotive and Armament Command) Legal Department and an official review from Captain C---s H. K-----w, Judge Advocate HRC, both agreed that the use of the word "shall" in the provision required the Army to reduce the retirement eligibility age when authorized.  The law was written to support and recognize the sacrifices of our Reserve Soldiers.  The Senate sponsor, Senator Ch-----ss, was very clear that this was intended as an incentive for the outstanding support our Reservists have made to support combat operations and the Senate unanimously concurred.  He (IG officials) does not understand how we have interpreted this intent by the Senate to be a voluntary entitlement.  It is clear, at least to him, that this law was meant as an incentive for service and not intended to negatively affect Soldiers.

	e.  In the applicant's specific case, he sees no benefit whatsoever to the Army in not allowing him to retire at his current grade as intended by NDAA 2008, especially since he will not have met his 3-year TIG obligation even by forgoing his benefit and waiting until his normal MRD. 

8.  An advisory opinion was received from HRC in the processing of this case.  The advisory official reaffirmed HRC's position that the applicant had not met the 3-year TIG requirements.  The applicant noted the HRC's advisory opinion but requested an interpretation by the Army G-1.  

9.  On 8 August 2014, an advisory opinion was received from the Army G-1 in the processing of this case.  An advisory official stated this responds to the applicant's request to retire in the rank of COL under the reduced age provisions contained in section 12731(f)(2), Title 10, USC.  Based upon the facts, the Army G-1 recommends disapproval of the applicant's application for relief.

	a.  The applicant, an IRR officer, contends, with support from the HRC IG, that the reduced age provisions of Section 12731(f)(2) require his non-regular retirement at an age earlier than age 60, since he has active duty service qualifying for the age reduction.  His interpretation of section 12731(f)(2) is that his retirement is then, in effect, involuntary.  This interpretation is in error because it is confusing the statutory eligibility requirements for non-regular retirement with the statutory requirements for retirement in grade; these two elements are separate and distinct from one another.

	b.  Section 12731(a), Title 10, USC, states a person is entitled, upon application, to retired pay computed under section 12739, if the person has 

attained the eligibility age applicable under subsection (f) of section 12731, and meets all other criteria of the statute.  While a Soldier may be entitled to non-regular retired pay at age 60 or earlier, his or her application for the retired pay is a voluntary act; no official or authority may direct or compel a Soldier to request/apply for non-regular retired pay.  This is further reinforced in paragraph 2-2, Army Regulation 135-180 (Qualifying Service for Retired Pay, Non-Regular Service), which states it is the responsibility of each individual to submit his or her application for retired pay.

	c.  Involuntary separation (removal from the Reserve Active Status List (RASL)) is prescribed in section 14516, Title 10, USC, and specifies that separations pursuant to sections 14513 (non-selection for promotion), 14514 (maximum years of commissioned service), or 14515 (maximum ages 62, 64, and 66) shall be considered to be involuntary separations for purposes of any provisions of law.  Accordingly, if [Applicant] is transferred from the IRR to the Retired Reserve under section 14514, upon reaching his MRD for maximum years of commissioned service (on 1 November 2014), he will be involuntarily removed from the RASL.  If he requests and is transferred from the IRR to the Retired Reserve prior to reaching his MRD for maximum years of commissioned service, whether or not in conjunction with application for non-regular retired pay, his removal from the RASL will be considered voluntary for purposes of law.

	d.  Section 1370(d)(1), Title 10, USC, specifies that "unless entitled to a higher grade, or to credit for satisfactory service in a higher grade, under some other provision of law, a person who is entitled to retired pay under chapter 1223 of this title shall, upon application under section 12731 of this title, be credited with satisfactory service in the highest grade in which that person served satisfactorily at any time in the armed forces, as determined by the Secretary concerned in accordance with this subsection."  Subsection 1370(d)(3)(A) specifies that in order to be credited with satisfactory service in an officer grade above major, a person covered by paragraph (1) must have served satisfactorily in that grade (as determined by the Secretary of the military department concerned) as a Reserve commissioned officer in an active status, or in a retired status on active duty, for not less than 3 years.

	e.  Finally, subsection 1370(d)(3)(B) states a "person covered by subparagraph (A) who has completed at least 6 months of satisfactory service in grade may be credited with satisfactory service in the grade in which serving at the time of transfer or discharge, notwithstanding failure of the person to complete 3 years of service in that grade, if that person is transferred from an 

active status or discharged as a Reserve commissioned officer- (i) solely due to the requirements of a nondiscretionary provision of law requiring that transfer or discharge due to the person's age or years of service; ..."  Therefore, if the applicant is voluntarily transferred from the IRR to the Retired Reserve prior to 
1 November 2014 (his MRD for maximum years of commissioned service), he will not be entitled to receive non-regular retired pay in the rank of colonel because he will not meet the minimum satisfactory service in grade in an active status under section 1370.

	f.  The 17 April 2014 advisory opinion from the Chief, Reserve Component Retirements Branch, HRC, contained within your request is accurate and in compliance with Army Regulation 135-180, as modified by the reduced age provisions of the 2008 NDAA. 

10.  The applicant was provided a copy of this advisory opinion for an opportunity to respond and/or submit a rebuttal.  He did not respond. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to COL on 17 December 2011.  Normally, he would have needed to serve until 16 December 2014 to meet his TIG requirement to retire in the higher grade.  However, because his removal from the RASL and transfer to the Retired Reserve was an involuntary action due to maximum service under the provisions of Title 10, USC, section 14514, he was transferred to the Retired Reserve as a COL.  

2.  Because he was released from the RASL under Title 10, USC, section 14514, when/if he applies for retired pay at age 60 he will be entitled to retired pay as a COL under the provisions of Title 10, USC, section 1370(d)(3)(A).

3.  The applicant was not involuntarily removed from the RASL until 1 November 2014.  If his request is granted and he is granted retirement 9 months earlier than age 60; i.e., effective 14 March 2014, that means his retirement would have been approved while he was still on the RASL.  That would mean that his removal from the RASL would have been a voluntary action on his part.

4.  Entitlement to retired pay is not automatic.  Under Title 10, USC, section 12731(a), a person must apply for retired pay.  Had he applied (i.e., voluntarily requested retirement) under NDAA 2008, his eligibility age for that purpose “shall” have been reduced below age 60 by 9 months, but it still would have been a voluntary retirement.  Had he voluntarily applied for and been granted retired 

pay under NDAA 2008 he would have been eligible at the earlier age, but because it would have been a voluntary retirement he would not have met the 3 years TIG for retirement as a COL.  

5.  Since it appears the applicant is requesting early retirement only contingent upon retiring in the rank of COL, 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)                                         AR20140012136



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ABCMR Record of Proceedings (cont)                                         AR20140012136



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