IN THE CASE OF:	  

		BOARD DATE:	  17 September 2015

		DOCKET NUMBER:  AR20150001302 


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 his record to show he is eligible to receive nonregular retired pay upon reaching 60 years of age
* correction of his record to show he is eligible for back pay for officers with prior enlisted service (O-E)
* removal of a suspension of favorable personnel actions (Flag) based on an Army Physical Fitness Test (APFT)

2.  The applicant states:

     a.  He should have been paid at the O-E rate.  His Alabama Army National Guard (ALARNG) records showed he had 14 good years prior to his acceptance of a direct commission in 2004/2005.  At the time of his separation in 2010, the Wyoming ARNG (WYARNG) reflected only 16 years.  The time he served in the U.S. Army Reserve (USAR) from 2005 through 2007 was not computed.

     b.  He attempted to be awarded O-E pay on several occasions and was denied even when he had documentation.  He also attempted to get his time served corrected without success. 

     c.  He does not have any documentation because most correspondence occurred through his military account.  After he separated he was denied access and all documentation was lost to include an inappropriately fabricated memorandum related to a request for an extension of his mandatory retirement date (MRD).

     d.  His Flag should be removed because it had been verified that after age 60 the AFPT was not required.

3.  The applicant provides:

* ARNG Current Annual Statement
* Officer Record Brief
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of retirement Points)
* a letter requesting extension of MRD
* memorandum, subject:  [Applicant], issued by WYARNG Medical Command, dated 6 February 2009
* memorandum, subject:  Approval of MRD extension, dated 12 June 2009
* Addendum to U.S. Army Recruiting Command Form 1166 (For Retention Special Pay)
 

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.  With regard to the applicant's request for removal of a Flag from his official military personnel file (OMPF), his record is void of the DA Form 268 (Report of Suspension of Favorable Personnel Actions) that initiated the Flag.  Therefore, the Flag will not be discussed further in these proceedings.


3.  The applicant enlisted in the Regular Army on 26 February 1970.  He was honorably transferred to the USAR on 28 March 1972.  He completed 2 years,     1 month, and 3 days of total active service.  

4.  On 14 December 1983, he was appointed as a warrant officer in the ALARNG.  

5.  On 28 November 2007, he was promoted to the rank/grade of captain/O-3 by the WYARNG.

6.  His NGB Form 22 shows was honorably separated from the ARNG on             31 October 2010.  He completed 16 years and 5 days of total service for retired pay.   

7.  His ARNG Current Annual Statement, dated 5 May 2011, shows he was credited with 16 years, 8 months, and 6 days of qualifying service for non-regular retirement.  Specifically, this statement shows during the years 2005 through 2007:

* from 28 March 2005 through 27 March 2006, he received 70 points, crediting him with 1 year of creditable service for retired pay
* from 28 March 2006 through 27 March 2007, he received 46 points, he did not receive any creditable service for retired pay
* from 30 May 2007 through 27 March 2008, he received 29 points, he did not receive any creditable service for retired pay  

8.  His record is void of any evidence and he has not provided any evidence that shows he completed any service that was not previously accounted for on his ARNG Current Annual Statement.

9.  In processing this case, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau, which recommended disapproval of the applicant's request.  The advisory official stated:

     a.  Army Regulation 37-104-4 (Military Pay and Allowances Policy), paragraph 2-3, states commissioned officers in the pay grades O1, O2, or O3 are entitled to the special rate of pay if the officer has over 4 years of active enlisted and warrant officer service or a combined total of active enlisted and warrant officer service.

     b.  On 2 November 2009, the applicant requested an individual ARPC           Form 249-E, and that form showed he had 14 years, 2 months, and 8 days total qualifying years for retirement.  He specifically addressed years 2005 through 2007 as not being counted.  His ARPC Form showed:  from 28 March 2005 through 27 March 2006, he received 70 points, which credited him with 1 full year; from 28 March 2006 through 27 March 2007, he received 46 points; and from 28 March 2007 through 27 March 2008, he received 29 points.

     c.  The NGB conducted a thorough review of his personnel and retirement records and it was determined that he had not earned the required 20 years of qualifying service for military retired pay eligibility.  He served faithfully in the military for over 34 years for pay purposes; however, within those years he earned only 16 years, 8 months, and 6 days of qualifying service towards a military retirement.  He did not meet the minimum of 20 years of qualifying service for receipt of retired pay.

     d.  U.S. Code, Title 10, section 12731a.2., required that a member earn a minimum of 50 retirement points in an anniversary year to qualify for retired pay eligibility.  He did not earn a minimum of 50 retirement points during many of his years of military service.

     e.  If he had documentation that would provide further credit towards his creditable retirement points he could submit the documentation to the WYARNG.

     f.  NG Regulation 680-2 (Automated Retirement Points Accounting Management), paragraph 2-4 (Minimum retirement points required for a year of satisfactory service) states Soldiers must earn a minimum of 50 retirement points, regardless of source, in each full anniversary year to have that year creditable towards verification of the total years of qualifying service for non-regular retired pay.

     g.  The NGB Retirements Branch and the NGB Officer Policy Branch concurred with the recommendation.

10.  On 17 April 2015, he was provided with a  copy of the advisory opinion.  He did not respond.

11.  Department of Defense (DOD) Financial Management Regulation, Volume 7A, Chapter 1 states, in pertinent part:

   a.  Commissioned officers with over 4 years of prior active service as an enlisted member, warrant officer, or combined service in both grades are entitled to count such service for purposes of computing basic pay for longevity purposes.  Such prior service includes all active service, in either the Regular or Reserve Component or both (i.e., active duty for training in enlisted or warrant officer status, annual Reserve training duty, and full-time National Guard duty).  Service on active duty or active duty for training for at least 4 years and 1 day satisfies the over 4 years of service requirement under this section. 

   b.  Credited Prior Enlisted Service.  Effective 20 May 1958, commissioned officers in pay grades O-1, O-2, or O-3 who are credited with over 4 years (i.e., at least 4 years and 1 day) of prior active service as an enlisted member are entitled to the special rate of basic pay for pay grade O-1E, O-2E, or O-3E.

12.  Title 10, U.S. Code, sections 12731-12737 authorize 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.

13.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of retired pay to Soldiers and former Reserve Component Soldiers.  Paragraph 2-8 of the regulation describes qualifying service, as pertains to this case, as service performed in an active status in a Reserve Component or in active Federal service.  After 30 June 1949, a Reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service.  Service in an inactive Reserve Component is not creditable for retirement purposes.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served 2 years, 1 month, and 3 days in an enlisted status prior to being commissioned as an officer in the ALARNG.  Because he did not have over four years of enlisted service at that time, he is not entitled to O-E pay.  

2.  His record is void of any evidence and he has not provided any evidence that shows he earned at least 20 years of qualifying service for retired pay and associated benefits.

3.  He contends that his USAR service from 2005 through 2007 was not computed; however, evidence shows between 28 March 2005 through               27 March 2008 he only earned 1 year of creditable service for retired pay.

4.  To be eligible for retired pay based on non-regular service, an individual must have attained the age of 60 and completed a minimum of 20 years of qualifying service.  A qualifying year is defined as a year of service during which a Reservist earns at least 50 retirement points.

5.  Although he served in the military for over 34 years for pay purposes, he only earned 16 years, 8 months, and 6 days of qualifying service towards a military retirement.

6.  In view of the foregoing, there is no basis for granting his 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)                                         AR20150001302





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ABCMR Record of Proceedings (cont)                                         AR20150001302



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