IN THE CASE OF:	  

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140015803 


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 the following:

* correction of his records to reflect he completed all requirements for a non-Regular Reserve retirement in May 1997 [should be March 1996]
* issuance of a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)

2.  The applicant states:

   a.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period from February 1991 through March 1996 indicates the entire period of military service was performed in the "Regular Army (RA) Component."  In accordance with (IAW) Title 10, U.S. Code (USC), section 1331(d) he was never issued a 20-Year Letter.  Factually, this in inaccurate, as only the last 14 months and 5 days of this service was performed in an RA status.  In reality, the first 3 years, 10 months, and 20 days of his obligated AD service was performed in an "Other than RA (OTRA)" Army Reserve Component (RC) Status with a Personnel Procurement Code.

   b.  He believes this is unjust because he was not properly credited with this voluntary service for non-regular retirement eligibility.  This lack of concise component information resulted in him not receiving the 20-Year Letter as required by law after performing 20 years of qualifying reserve service IAW Title 10, USC, section 12732.

   c.  He previously believed that all of his service was qualifying for the non-Regular retirement.  In 2013, he discovered that his records did not indicate that his last 6 years of qualifying service was performed in an RC when in fact they were.  He was not issued a 20-Year Letter as required.

   d.  In August 1991, during the first Gulf War, a call for Reserve volunteers to support the need for additional Army manpower was issued.  He was then serving in an active status with the Minnesota Army National Guard (MNARNG) and volunteered.  On 1 February 1991, he received orders to AD under the provisions of Title 10, USC, section 672d.  He agreed to the AD service commitment for up to 4 years. 

   e.  His service record National Guard Bureau (NGB) Form 23B (Retirements Points History Statement) shows his service on mobilized AD performed in the RA Component is disregarded in accordance with the procedures of Army Regulation (AR) 135-180, paragraph 2-1(3).  Only the service performed in an OTRA status is included in determining whether the last 6 years reserve service requirement has been met.  It is mathematically clear that he qualified for a Reserve non-Regular retirement in May of 2007.

   f.  The errors in his service records resulted in a failure by the Chief, NGB, when he did not send him the required 20-Year Letter within 1 year of qualifying for the reserve retirement as required by law and regulation AR 135-180, paragraph 203.
   
   g.  At the time of his separation from AD in 1996, following his OTRA and RA service for Desert Shield/Storm, administrative personal at Fort Riley, KS, combined the service years and months performed with both components, i.e., OTRA on AD immediately followed by RA on AD.  This DD Form 214 issued for the time period only indicated the last component in which he served, which was RA.  The result of the single RA component entry was that his qualifying Reserve service on AD, OTRA status, was not separately credited for Reserve non-regular retirement eligibility.

3.  The applicant provides copies of the following:

* Appointment memorandum
* Orders Number A-92-000098
* Promotion memorandum
* NGB Form 22 (Report of Separation and Record of Service)
* Order Number 045-011
* Order Number 70-1-A-96

* DA Form 71 (Oath of Office – Military Personnel)
* DD Form 214 ending on 1 March 1996
* three NGB Forms 23B
* Military Membership Status Identified (MMSSI) Code List
* Orders Number 167-010
* Voluntary Retirement memorandum
* Orders Number 216-001
* Orders Number 217-006
* email from the U.S. Army Human Resources Command (HRC)
* Title 10, USC, section 12731
* Excerpts of AR:
* 135-180 (ARNG and USAR, Qualifying Service for Retired Pay Non-regular Service)
* 601-100 (Appointment of Commissioned and Warrant Officers in the RA)
* 601-101 (Identification of Commissioned and WO Personnel by Army Procurement Program)

* National Guard Regulation (NGR) 680-2 (Automated Retirement Points Accounting Management), paragraph 3-13
* Department of Defense Instruction Number 1366.1, dated 6 January 1989 and 20 August 2009

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 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 the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant was born XX February 1953.

3.  His military records show he enlisted in the USAR Delayed Entry Program on 11 February 1975 and was discharged on 25 March 1975 for the purpose of enlisting in the RA.

4.  He enlisted in the RA on 26 March 1975.  He was honorably discharged on 30 May 1977 for the purpose of immediate reenlistment.  He was issued a DD Form 214 crediting him with completing 2 years, 2 months, and 5 days of active service and 1 month and 15 days of prior inactive service (DEP).

5.  He reenlisted in the RA on 31 May 1977 for 4 years.  He completed 44 weeks of Aviation school.  He was honorably discharged on 10 January 1979.  He was issued a DD Form 214 crediting him with completing 1 year, 7 months, and 20 days of active service and 2 years, 2 months, and 5 days of prior active service.

6.  On 18 October 1978, Headquarters, U.S. Army Aviation Center and Fort Rucker, AL, published Orders Number 202-12-A-370 which ordered him to AD for a 3-year AD commitment with a reporting date of 22 February 1979.

7.  A DA Form 71 shows he was appointed in the USAR, as a warrant officer one (WO1), on 11 January 1979.  He entered AD on the same date

8.  He was released from AD on 10 January 1982 and was transferred to the USAR Control Group (Reinforcement).  He was issued a DD Form 214 crediting him with completing a 3 years of active service and 3 years, 9 months, and 15 days of prior active service.

9.  On 16 January 1982, he was appointed in the MNARNG as a chief warrant officer two.  He was promoted to chief warrant officer three (CW3) on 22 January 1987.

10.  On 1 February 1991, the Total Army Personnel Command published Orders Number A-92-999098 which ordered him to AD as an obligated volunteer officer for 4 years.

11.  On 6 February 1991, he was discharged from the MNARNG and was transferred to a Reserve unit.  He was credited with completing 9 years and 21 days of net service. 

12.  He again entered AD in the rank of CW3 on 7 February 1991.

13.  He was released from AD on 31 October 1991 and was transferred to the USAR Control Group.  He was credited with completing 2 years and 1 month of active service.

14.  On 5 October 1994, the Total Army Personnel Command published Orders Number 70-1-A-96 which appointed him as a CW3 and ordered him to AD as an RA officer.

15.  On 27 December 1994, he executed a DA Form 71 which appointed him in the RA as a CW3.

16.  On 1 March 1996, he was released from AD and was transferred to a Reserve unit.  He was issued a DD Form 214 crediting him with completing a total of 17 years, 3 months, and 9 days of active service.

17.  He again entered AD on 1 October 1997.

18.  On 9 December 1997, the Department of Military Affairs, MNARNG, published Orders Number 343-828 which reassigned him to Airfield Support Division due to reorganization.

19.  On 30 April 1998, the NGB published Orders Number 120-005 which ordered him to AD in an AGR status with a reporting date of 21 May 1998.

20.  On 16 June 1999, the NGB published Orders Number 167-010 which assigned him to the Military Personnel Services Section to serve as a Programs Officer.

21.  In a Voluntary Retirement memorandum, dated 3 August 1999, the Chief, Special Program Officer, NGB, provided him with retirement orders.

22.  The NGB issued the following orders on/for:

* Orders Number 216-001, 3 August 1999, releasing him from AD and placing him on the retired list effective 1 November 1999; the orders show he was credited with completing 20 years, 11 months, and 20 days of service
* Orders Number 217-006, 5 August 1999, revoking Orders Number 167-010, dated 16 June 1999, and attaching him to the U.S. Army Transition Point for separation processing

23.  He was retired on 31 October 1999, under the provisions of AR 600-8-24 (Personnel – General – Officer Transfers and Discharges), paragraph 6-14C(1), for Sufficient Service for Retirement.  His DD Form 214 lists in:

* Item 12c (Net Active Service This Period) – 2 years and 1 month
* Item 12d (Total Prior Active Service) – 18 years, 10 months, and 20 days
* Item 12e (Total Prior Inactive Service) – 3 years and 9 months

24.  His NGB Form 23B, dated 6 February 2001, shows the following:

* he served in the DEP from 11 February 1975 through 25 March 1975
* he served in the RA from 26 March1975 through 10 January 1979
* he served as a Reserve member on AD from 11 January 1979 through 10 January 1982
* he served in the USAR Control Group from 11 through 15 January 1982
* he served as a unit member in the ARNG from 16 January 1982 through 29 May 1989
* he served in the ARNG, State Controlled, from 30 May through 30 September 1989
* he served as a unit member in the ARNG from 1 October 1989 through 1 January 1990
* he served in the ARNG, State Controlled, from 2 January through 16 March 1990
* he served as a unit member in the ARNG from 17 March through 31 December 1990
* he served in the ARNG, State Control from 1 January through 6 February 1991
* he served as a Reserve member on AD from 7 February 1991 through 24 December 1994
* he served in the RA from 25 December 1994 through 1 March 1996
* he served in the USAR Control Group from 2 March through 2 May 1996
* he served as a unit member in the ARNG from 3 May 1996 through 9 March 1997
* he served in the ARNG, NGB Controlled, from 10 March through 29 September 1997
* he served as a unit member in the ARNG on 30 September 1997
* he served the ARNG, NGB Controlled, from 1 October 1997 through 31 October 1999

25.  He reached age 60 on XX February 2013.                                                       

26.  In an email, dated 11 December 2013, an HRC official advised the applicant of the following:

   a.  After conferring with the NGB and thoroughly reviewing information, he was not eligible to convert his retirement from AD to non-Regular retirement.  Once a Soldier achieved 20 years of active service, they are no longer entitled to retire with a non-Regular retirement per Title 10, USC, section 12731.
   b.  Except as provided in subsection (c) of the title, a person is entitled, upon application, to retired pay computed under section 12739 of the title, if the person:
   
* has attained the eligibility age applicable under subsection (f) to that person
* has performed at least 20 years of service computed under section 12732 of that title
* in the case of a person who completed the service requirements of paragraph (2) before 25 April 2005, performed the last 6 years of qualifying service while a member of any category names in section 12732(a)(1) of that time, but not while a member of a regular component

27.  His NGB Form 23B, dated 24 August 2014, shows the following:

* he served in the USAR from 11 February through 25 March 1975
* he served in the RA from 26 March 1975 through 10 February 1981
* he served in the USAR from 11 February 1981 through 16 January 1982

28.  In an advisory opinion, dated 15 January 2014, the Chief, Personnel Policy Division, NGB, recommended denial of the applicant's request because the applicant did not have sufficient time during transition to elect OTRA retirement entitlements.  The NGB official stated:

   a.  The applicant elected for AD retirement and retired on 31 October 1999, by Orders Number 216-001, dated 3 August 1999.  He believes that his service qualified him for the non-Regular retirement, but he was not properly credited for voluntary reserve service for non-regular retirement eligibility.  He further indicated that he did not receive a 20-Year Letter by law after performing 20 years of qualifying reserve service IAW Title 10, USC, section 12732, which led to his inaccurate account of retirement calculations.

   b.  Title 10, USC, section 17232, states the last 6 qualifying years have to be in a RC to be eligible for a reserve retirement.  The law is not retroactive and the only exception was for Soldiers who served a minimum of 2 years of drilling service (minus any active service) after becoming eligible for a regular active service retirement.  Soldiers could request to convert their regular retired pay to non-Regular retired pay under Title 10, USC, section 12742 (effective October 2009, but must meet the criteria prescribed in law.  

   c.  Based on the applicant's NGB Form 23B and DD Form 214, his last 6 qualifying years were not in a RC and did not qualify to convert retirement programs.  The NGB Retirement Services and the MNARNG concurred with the recommendation.

29.  The advisory opinion was provided to the applicant on 20 January 2014 for acknowledgement/rebuttal.  In his rebuttal, dated 30 January 2014, the applicant stated:

   a.  He did not request an OTRA retirement.  He is requesting to be properly credited with all Reserve service performed specifically from 7 February 1991 through 27 December 1994, to indicate that this service was performed as an USAR Warrant Officer aviator on AD during the mobilization in support of the Active Army Requirements for Desert Shield/Storm.  The majority of this Reserve service occurred during the last 6 years of the 20 qualifying years required for Reserve retirement eligibility.

   b.  Because he was not properly credited with the Reserve service performed from 7 February 1991 through 27 December 1994, his service record was subsequently incorrect.  As a consequence of this error, several administrative errors followed and he did not receive a 20-Year Letter which was required by law after performing 20 years of qualifying Reserve service.

   c.  The NGB opinion did not address the specific issues with his appeal.  Those issues are directly related to properly crediting his Reserve service which was performed while on AD.  Approximately 4 years into his Obligated Volunteer Contractual Agreement, in December 1994, while still serving in a USAR status, he was advised that he must accept an RA appointment or be transferred back to the USAR at the end of his contract in February 1995.

   d.  On 26 December 1994, he signed a DA Form 71.  At the time, he had completed 5 years, 10 months, and 15 days of the required last 6 years of Reserve service.  At that time, he was approximately 45 days short of the Reserve service time needed in order to qualify under a purely Reserve retirement system, as per Title 10, USC, section 12731.

   e.  On 1 March 1996, he transferred back to the USAR without a break in service.  He continued to serve in the MNARNG.  On or about 15 April 1996, he had completed the last 6 years requirement for Reserve service to qualify for a non-Regular retirement under Title 10, USC, section 12731.  He later voluntarily retired from the NGB on 31 October 1999.  His service records do not properly credit Reserve service that he performance during his mobilization tour of duty within the computation of the last 6 years requirement, out of the 20 qualifying years for Reserve service.

30.  AR 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), in effect at the time, set forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 related to the removal of Soldiers from an active status and stated that Soldiers removed from an active status would be discharged or, if qualified and if they so requested, would be transferred to the Retired Reserve.

31.  AR 135-180, in effect at the time, stated:

   a.  In order to be eligible for retired pay, an individual did not need to have a military status at the time of application for retired pay, but must had (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and (3) served the last 8 years of his/her qualifying service as a RC Soldier.  The requirement to serve the last 8 years in a RC status had since been amended to the last 6 years and currently 0 years.  Service performed concurrently in a RC and the RA is not creditable as service in a RC for that period. 

   b.  Paragraph 2-3 - a 20-Year letter would be issued to RC Soldiers within 1 year after they had completed 20 years of qualifying service for retirement.

32.  NGR 680-2, dated 19 August 2011, sets the responsibilities and procedures to establish and maintain retirement records.  Paragraph 3-13 states Soldiers who, after becoming entitled to regular retired pay, service in an active status in the ARNG, may apply to the Secretary of the Army for a waiver of their regular retired pay and for payments of retired pay for non-regular service on or after attaining the age specified in paragraph 3-1.  These Soldiers are exempt from the minimum RC service requirement stated in paragraph 3-3. They are also exempt from the limitations of Title 10, USC, section 12371(a)(4) that they not be entitled to retired pay from an armed forces as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.

33.  Title 10, USC, section 12731 states, except as provided in subsection (c), a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person has attained the eligibility age applicable under subsection (f) to that person; has performed at least 20 years of service computed under section 12732 of this title; and in the case of a person who completed the service requirements of paragraph (2) before 25 April 2005, performed the last 6 years of qualifying service while a member of any category 

named in section 12732(a)(1) of this title, but not while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve, except that in the case of a person who completed the service requirements of paragraph (2) before 5 October 1994, the number of years of such qualifying service under this paragraph shall be 8 years; 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.

34.  Title 10, USC, section 12741, paragraph (a)(1) (Authority to Elect to Receive Reserve Retired Pay) states notwithstanding the requirement in paragraph (4) of section 12371(a) of this title that a person may not receive retired pay under this chapter when the person is entitled, under any other provision of law, to retired pay or retainer pay, a person may elect to receive retired pay under this chapter, instead of receiving retired or retainer pay under chapter 65, 367, 571, or 867 of this title, if the person:

   a.  Satisfies the requirements specified in paragraphs (1) and (2) of such section for entitlement to retired pay under this chapter; 

   b.  Served in an active status in the Selected Reserve of the Ready Reserve after becoming eligible for retirement under chapter 65, 367, 571, or 867 of this title (without regard to whether the person actually retired or received retired or retainer pay under one of those chapters); and 

   c.  Completed not less than 2 years of satisfactory service (as determined by the Secretary concerned) in such active status (excluding any period of active service). 

DISCUSSION AND CONCLUSIONS:

1.  With regard to correction of the applicant's records to reflect he completed all requirements for a non-Regular Reserve retirement in May 1997 [should be March 1996]:

   a.  He served as a Reserve member on AD from 7 February 1991 through 24 December 1994.  He was ordered to and continued to serve on AD in the rank of CW3.  He was released from AD on 1 March 1996 and was transferred to a Reserve unit.  He was credited with completing a total 17 years, 3 months, and 9 days of active service.
   
   b.  There is no evidence and he provided none showing he had completed 20 qualifying years of service in March 1996 for a non-Regular Reserve retirement.  By law, a Soldier must have completed a minimum of 20 years of qualifying service and served the last 6 years of his/her qualifying service as a RC Soldier to be eligible for a reserve retirement.  Therefore, he did not meet the criteria for non-Regular Reserve retirement in 1996.

   c.  He again entered AD on 1 October 1997.  He requested voluntary AD retirement and was retired on 31 October 1999.  

   d.  The law is clear at the time the applicant was separated in 1996 and 1999 in order to qualify for non-Regular retirement, in addition to meeting other requirements, the member must have performed the last 6 years of qualifying service as a member of a Reserve Component.  He did not meet this statutory requirement.  As such, he remains ineligible for a non-Regular Reserve retirement. 

   e.  Title 10, USC, section 12741, specifies the 2009 law is not retroactive and an exception was allowed only for a Soldier in a drilling status.  By his own admission, he was on AD from 7 February 1991 through 27 December 1994, mobilized in support of the Desert Shield/Storm.  As such, he was not in a drilling status.  He served on AD from 1997 for his last 2 years of service prior to completing 20 years of service in 1999.

   f.  In view of the foregoing, he is not entitled to the requested relief.

2.  With regard to the issuance of a 20-Year letter:

   a.  Since he had not completed 20 years of qualifying service and was RA and not RC at the time of his separation on 1 March 1996 or 31 October 1999, he was not entitled to a 20-Year letter.

   b.  In view 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 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)                                         AR20140015803





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ABCMR Record of Proceedings (cont)                                         AR20140015803



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