IN THE CASE OF:  	  

		BOARD DATE:  8 October 2015	  

		DOCKET NUMBER:  AR20150001227 


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 credit of membership retirement points and transfer to the Retired Reserve.  In response to an advisory opinion, he requested a medical retirement.

2.  The applicant states:

* on 1 January 2002, he was eligible to be transferred to the Retired Reserve to serve out his remaining year
* he needed points to be transferred from inactive duty to creditable qualifying retirement points
* he should have been in sanctuary
* many errors occurred due to incorrect points
* his promotion was effected and the errors effected his correct retirement points

3.  The applicant provides:

* Standard Form 180 (Request Pertaining to Military Records)
* National Guard Bureau (NGB) Form 22E (Report of Separation and Record of Service)
* State of California, Office of the Adjutant General Orders 74-048, dated 15 March 1999
* U.S. Army Reserve Personnel Command (ARPC) Orders D-08-139049, dated 21 August 2001
* U.S. Total Army Personnel Command memorandum, subject:  Notification of Promotion Status, dated 26 July 2001
* Army Review Boards Agency letter, dated 22 July 2014
* U.S. Army Human Resources Command (HRC) letter, dated 30 December 2014
* two Army National Guard (ARNG) Retirement and Points History Statements, dated 14 March 2014 and 30 October 2014
* AHRC Form 249-E (Chronological Statement of Retirement Points), dated 30 December 2014

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.  Having had prior honorable enlisted service in the Regular Army and U.S. Army Reserve (USAR), the applicant was commissioned as a Reserve second lieutenant on 20 August 1988. 

3.  He was promoted to first lieutenant on 19 August 1991 and he was promoted to captain on 14 April 1994.

4.  State of California, Office of the Adjutant General Orders 74-048, dated 15 March 1999, discharged the applicant from the ARNG effective 1 December 1998 and transferred him to the USAR Control Group (Reinforcement).

5.  His NGB Form 22E shows in:

* item 10d (Total Service for Pay) – 21 years, 3 months, and 25 days
* item 10e (Total Service for Retired Pay) – 16 years and 2 months
* item 23 (Reason and Authority) – Office of the Adjutant General Order 074-048, dated 15 March 1999, and National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition), paragraph 5a(3)(a)
6.  On 10 August 2000, he was notified of his non-selection for promotion to major.

7.  On 26 July 2001, he was notified of his second non-selection for promotion to major.  He was also informed of his separation in accordance with Title 10, U.S. Code, section 14513 or Amy Regulation 140-14, and his established removal date of 1 January 2002, unless he was eligible for and requested transfer to the Retired Reserve.

8.  On 1 January 2002, he was honorably discharged from the USAR.

9.  On 20 March 2015, he was issued an NGB Form 22A (Correction to NGB Form 22), which shows the entry in item 10e on his NGB Form 22 was changed from 16 years and 2 months to 19 years.

10.  On 27 March 2015, the Chief, Personnel Policy Division, NGB, provided an advisory opinion.  This official recommended denial of the applicant's request and stated:

	a.  The applicant voluntarily resigned from the CAARNG and he was transferred to an inactive status in the U.S. Army Control Group (Reinforcement) on 1 December 1998.

	b.  He attained 19 years of service when he voluntarily resigned.  His NGB Form 22E, paragraph 10e, indicated he attained 16 years and 2 months of total service for retired pay.  However, this was incorrect at the time of his discharge and later corrected to 19 years according to his NGB Form 23B dated 30 October 2014 and NGB Form 22A, dated 20 March 2015.

	c.  He was not issued an NGB Form 23D (Notification of Eligibility for Retired Pay for Non-Regular Service) prior to his separation from the CAARNG.

	d.  He continued to earn up to 15 retirement points per year for membership in the USAR between 1998 and 2002 according to his NGB Form 23B, dated 20 December 2014.  He did not earn any additional retirement points during this timeframe.  A service member must earn at least 50 retirement points each 
1-year period for it to be a creditable year.

	e.  The CAARNG and the NGB Retirement Services concur with the advisory opinion.

11.  On 9 June 2015, the applicant was sent a copy of the advisory opinion and given an opportunity to respond and/or provide further corroborating documentation.

12.  On 22 June 2015, the applicant requested an extension of time to prepare a response to the advisory opinion.  He was given an extension suspense date of 13 July 2015.

13.  On 1 September 2015, the applicant provided a response and requested that his NGB Form 22E be changed to a medical discharge.  He further stated HRC would issue a 15-year letter to Soldiers medically disqualified from future service for physical or medical reasons.  His medical discharge should be based under Title 10, U.S. Code, section 12731(a).  He also provided:

	a.  an email from Captain C___ L. W___, Appeals Analyst, NGB, dated 23 June 2015, in which he advised the applicant of the issuance of 15-Year Letters and the possibility of transferring points,

	b.  memorandum from ARPC, subject:  Options Upon Non-selection for Promotion After Second Consideration, dated 8 August 2001, in which he was advised of his separation or transfer to the Retired Reserve if he qualified,

	c.  Honorable Discharge Certificate from the U. S. Army Reserve (USAR), dated 1 January 2001, and

	d.  extracts of medical records from Eden Medical Center, that show he underwent surgery for distal sigmoid colon cancer on 10 May 2000 and on 16 July 2001, he underwent a colonoscopy and biopsy.  

14.  His AHRC Form 249-E, dated 30 December 2014, shows he completed 19 qualifying years for non-regular service retirement.  The statement shows the total retirement points and component for the retirement year ending (RYE), in part, as follows:

* RYE 2 November 1995 – ARNG – 100 points
* RYE 2 November 1998 – ARNG – 26 points

15.  His record is void of any evidence and he has not provided any evidence showing he served any service that was not previously accounted for in the service computation depicted on his AHRC Form 249.

16.  His military medical records are not available for review and he does not provide copies.  His available records are void of and he failed to provide any evidence showing he was referred to a physical evaluation board (PEB) or that he was found unfit for duty.  

17.  Title 10, U.S. Code, sections 12731-12737 (Retired Pay for Non-Regular Service) authorized retired pay for Reserve Component (RC) 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.  After 1 July 1949, a qualifying year is defined as a year in which at least 50 retirement points are earned.  

18.  Title 10, U.S. Code, section 12646b (Commissioned Officers:  Retention after completing 18 years or more, but less than 20 years of service) states that on the date prescribed for the discharge or transfer from an active status of a Reserve commissioned officer, he is entitled to be credited with at least 19, but less than 20 years of service computed under section 12732 of this title, he may not be discharged or transferred from an active status under chapter 573, 1407, or 1409 of this Title or chapter 21 of Title 14, without his consent before the earlier of the following dates:

	a.  the date on which he is entitled to be credited with 20 years of service computed under section 12732 of this Title; or

	b.  the second anniversary of the date on which he would otherwise be discharged or transferred from an active status.

19.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-regular Service), paragraph 2-1a, 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, and (3) served the last 8 years of his or her qualifying service as an RC Soldier.  This regulation also specifies, in part, that 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.

20.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) also prescribes that a captain on the Reserve Active Status List (RASL) who has failed in selection for promotion to major for the second time and whose name is not on a list of officers recommended for promotion to major, will be separated unless the officer has a remaining service obligation or can be credited with 18 or more but less than 20 years of qualifying service for retired pay.  Separation will be on the later of the first day of the month after the month in which the officer completes 20 years of commissioned service, or the first day of the seventh month after the approval date of the promotion board report that non-selected the officer for the second time.

21.  National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition), paragraph 5a(3)(a) states an officer may tender a resignation through channels to the State Adjutant General.  If accepted, the State Adjutant General will publish orders separating the officer from his ARNG appointment and furnish copies to the Chief, NGB.  The resignation may also be concurrent from the ARNG and USAR for officers without a remaining service obligation.

22.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  His records are void of and he failed to provide any evidence showing he was processed through the Physical Disability Evaluation System or he was found unfit for duty.  Although he provided evidence showing he underwent surgery for colon cancer, the medical extracts do not show he was evaluated by PEB and found unfit for duty.  Insufficient evidence has been presented to grant a disability retirement.

2.  It is reasonable to presume that a Soldier with 19 qualifying years towards a 20-year retirement would not knowingly forfeit a qualifying year if he or she were aware of the situation.  Because his retirement points were not properly calculated at the time of his discharge, it appears that he was not properly advised of the requirements to be eligible for retired pay at age 60.

3.  He met the requirement for sanctuary base on his 19 years of qualifying service.  Had his retirement points been properly calculated, he would not have been discharged prior to being credited with 20 years of service or the second anniversary of the date on which he would otherwise would have been discharged or transferred from an active status. 

4.  Evidence of record shows that during RYE 2 November 1998, the applicant earned 26 creditable retirement points, 24 points short of earning the minimum 50 points necessary to be credited with a qualifying year.  However, during RYE 2 November 1995, he earned 100 creditable retirement points which exceeded the minimum 50 points required for a qualifying year.  In the interest of equity and justice, it would be appropriate to redistribute the necessary creditable retirement points to RYE 2 November 1998 to make it a qualifying year and making him retirement eligible for benefits at age 60.

5.  In view of the above, his records should be corrected to show he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), effective 2 December 1998 and transferred to the Retired Reserve effective 2 December 1998.  Based on this proposed action, his records should be further corrected to void all Reserve membership points credited for RYEs 2 December 1999 through 2 January 2002.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  redistributing creditable retirement points to RYE 2 November 1998 to make it a qualifying year for retirement and showing he completed 20 qualifying years for retirement,

	b.  issuing him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) with an effective date of 2 December 1998 with Survivor Benefit Plan guidance, and

	c.  issuing him orders transferring him to the Retired Reserve effective 2 December 1998.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to granting the applicant a disability retirement.



      ___________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)                                         AR20150001227



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150001227



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1