IN THE CASE OF:  	  

		BOARD DATE:  22 September 2015	  

		DOCKET NUMBER:  AR20150009774 


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 her records to show she completed 20 qualifying years of service and is entitled to receive a non-regular Reserve retirement.

2.  The applicant states:

a. The Army validated her retirement points in February 2014; however, they 
miscalculated the number of years she completed.

b. She contacted the Army Human Resources Command (HRC) after 
receiving the AHRC Form 249-E (Chronological Statement of Retirement Points) and asked if she could file for retirement based on the Statement and they agreed that she was eligible to submit her retirement application.

c. When her application reached HRC, they changed their decision and 
refused her request for retirement.

d. There is a long history of errors and injustices that have been imposed on
her.  When reaching her mandatory removal date (MRD), she was informed that she needed additional time to retire.  Therefore, she applied for an extension, but it was denied and she was told by HRC that her active duty time after her MRD did not count.

e. She had her records reviewed by the Officers Division in G-1 and was told
that her service after her MRD did, in fact, count and her records were corrected. Afterwards, she was told that she still needed 45 days to complete 20 good years to retire from the USAR.  Her agency asked for an extension so she could assist them with the holiday season in the post office, but the Adjutant General denied the request without explanation.  

f. She has attempted to come back on active duty to fulfill her remaining 
time, but in every case, her request has been denied.  

3.  The applicant provides:

* Self-authored statement
* AHRC Forms 249-E 
* DD Form 108 (Application for Retired Pay Benefits)
* DD Forms 214 (Certificate of Release From Discharge From Active Duty)

CONSIDERATION OF EVIDENCE:

1.  On 6 September 1977, the applicant enrolled in the Army Reserve Officers’ Training Corps (ROTC).  She was commissioned and appointed in the U.S. Army Reserve (USAR) as a 2nd lieutenant (2LT) on 11 May 1980.  

2.  The applicant’s ARHC Form 249E dated 26 February 2014 shows her retirement year beginning (RYB) date as 11 May 1980 and her retirement year ending (RYE) date 1 year later (i.e., 11 May) for each subsequent year until 
25 October 2008, her MRD.
   
3.  On 26 October 2008, the applicant was recalled to active duty until 
8 September 2013.  Her AHRC Form 249-E dated 26 February 2014 shows she was credited with 20 years, 2 months, and 14 days of qualifying service for a non-regular retirement with 4,646 total creditable points.  However, she never received a Notification of Eligibility (NOE) for non-regular retired pay.
   
4.  On 19 March 2014, the applicant submitted DD Form 108; however, HRC denied her request and informed her that she needed 45 more days to qualify for retirement and to find a position to complete her service.  

5.  The applicant states that she found a position at the U.S. Army Forces Command but her request for an extension was denied without explanation.

6.  On 5 August 2015, the HRC provided the applicant a corrected copy of her AHRC Form 249-E which shows she was credited with 19 years, 10 months, and 15 days of qualifying service for a non-regular retirement with 4,616 total creditable points.  It is noted that for RYE 10 May 2000 she was credited with 49 points, and for RYE 10 May 2001 she was credited with 59 points.

7.  The applicant provides a self-authored letter requesting an extension to satisfy the requirement to reach 20 good years of service for a USAR retirement, but it was denied by HRC.  She provides two different copies of her AHRC Forms 249-E, one showing 20 “good” years and the other showing only 19 “good” years for a non-regular retirement.

8.  In the processing of this case, an advisory opinion was obtained from the Chief, Reserve Components Retirement Branch, HRC.  It stated the applicant’s initial entry date was adjusted to reflect her non-creditable ROTC service, which changed her RYE date.  Therefore, she is not eligible to receive a 20-year letter and is not eligible for retired pay at age 60.  She had only 19 years, 10 months, and 15 days of qualifying service for retirement.

9.  On 27 August 2015, the applicant responded to the advisory opinion by stating that she believes several injustices have taken place in her case:

a.  She requested an extension after her last assignment in September 2013 
due to HRC stating that she would need 45 additional days of active duty to qualify for retirement.  Since she had more than 18 years of service at that time, she should have been granted sanctuary and been kept on active duty to satisfy the time needed to retire. 

b.  After being informed by HRC that she had 20 good years to be able to
retire, they denied her request.

c.  Although she always thought she had enough time for a Reserve
retirement, when she found out she did not, she requested to be called back to active duty but the request was denied.

d. She is requesting that this Board correct the injustices done to her, 
approve her request, and deem her eligible based on her retirement request dated March 2014.

10.  Title 10, U.S. Code, section 1223 (Retired Pay for Non-regular Service) states, in pertinent part, that a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person (1) has attained the age of 60; (2) has performed at least 20 years of service; and (3) performed the last eight years of qualifying service while a member of any category in the armed forces.

11.  Army Regulation 135-180 (Army National Guard and Army Reserve – Qualifying Service for Retired Pay Non-regular Service) implements statutory authorities governing granting retired pay to Soldiers and former Reserve Component Soldiers.  Paragraph 2-8 describes qualifying service as service performed in an active status in a Reserve Component or in active Federal service.  After 30 June 1949, a Reserve Soldier 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 of less than a full retirement year, a minimum number of retirement points must be earned to have that period credited as qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her discharge should be revoked and she should be transferred to the Retired Reserve List with 20 good years of qualifying service for a non-regular Reserve retirement was carefully considered and found to have merit.

2.  In February 2014, the HRC conducted an audit of the applicant's records and verified that the applicant had 20 years, 2 months, and 14 days of qualifying service for retirement.

3.  In March 2014, after the applicant applied for and was denied retirement, she was given a corrected AHRC Form 249-E, which changed her qualifying service to 19 years, 10 months, and 15 days.

4.  The HRC has indicated that she is not eligible to receive a 20-year letter and is not eligible for retired pay at age 60 since her corrected retirement point statement resulted in having 19 years, 10 months, and 15 days of qualifying service.

5.  It is reasonable to presume that a Soldier with over 19 qualifying years toward a 20-year retirement would not knowingly forfeit a qualifying year if she was aware of the situation.  Therefore, it appears that the applicant was not properly advised of the requirements to be eligible for retired pay at age 60.

6.  Evidence of record shows that during RYE 10 May 2000 the applicant earned 49 creditable retirement points, 1 point short of earning the minimum 50 points necessary to be credited with a qualifying year.  However, during RYE 
10 May 2001 she earned 59 creditable retirement points exceeding the minimum 50 points requirement for a qualifying year.  Therefore, in the interest of equity and justice, it would be appropriate to redistribute necessary creditable retirement points to RYE 10 May 2000 to make it a qualifying year thereby entitling the applicant to 20-year retirement benefits at age 60.

BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

a.  Transferring one point from RYE 10 May 2001 to RYE 10 May 2000 
giving her 20 years, 10 months, and 15 days of qualifying service for retirement.

b. Issuing her an NOE authorizing her to receive non-regular retired pay at
age 60.


                                                 _________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)                                         AR20140010276



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ABCMR Record of Proceedings (cont)                                         AR20150009774



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