AR20150010103

IN THE CASE OF:

BOARD DATE: 5 May 2016

DOCKET NUMBER: AR20150010103

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

____x___ ____x___ ____x ___ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 5 May 2016

DOCKET NUMBER: AR20150010103

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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.

IN THE CASE OF:

BOARD DATE: 5 May 2016

DOCKET NUMBER: AR20150010103

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 records to show he is entitled to a
20-year nonregular (Reserve) retirement.

2. He states he served his country faithfully for over 20 years. He explains that when he received his retirement packet, he filled it out and mailed it to the appropriate agency. He received orders approving his retirement; however, two days later he received orders rescinding the previously approved retirement orders. He adds he was surprised to find out that a six-year term in a Reserve Component was required to be eligible for retirement. He states he feels like the Army penalized him for being on active duty before enlisting in the Reserve.

3. He provides:

* Self-authored Statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 02-317-00070, dated 13 November 2002
* Orders C01-390384, dated 15 January 2013
* Orders C01-390384, dated 16 January 2013
* ARPC Form 249-E (Chronological Statement of Retirement Points), dated 16 January 2013
* U.S. Army Human Resources Command (HRC), Letter, dated 16 January 2013

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years 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. The applicant was born on 13 February 1953.

3. On 1 April 1981, he enlisted in the Army National Guard (ARNG).

4. On 4 March 1986, he enlisted in the Regular Army.

5. His record is void of any documentation concerning circumstances of his discharge. However, his DD Form 214 shows the Army honorably discharged him on 24 July 1999 in the rank/grade of sergeant (SGT)/E-5. He served on active duty for 13 years, 4 months, and 21 days and received $30,058.00 in separation pay. Additionally, this form reflects his entitlement to full involuntary separation pay.

6. On 25 July 1999, he enlisted in the U.S. Army Reserve (USAR).

7. Orders 02-317-00070, issued by Headquarters, 77th Regional Support Command, on 13 November 2002, show the USAR honorably discharged him effective 13 November 2002.

8. The applicant’s record is void of a notification of eligibility for retired pay at age 60 (20-year letter).

9. Orders C01-390384, issued by HRC, on 15 January 2013, shows HRC placed the applicant on the retired list on 13 February 2013, but subsequently revoked these orders on 16 January 2013.

10. On 16 January 2013, the Chief Retired Pay Branch, HRC, replied to the applicant’s DD Form 108 (Application for Retired Pay Benefits). She informed the applicant that to be eligible for retired pay at age 60, a Reserve Soldier or former Reserve Soldier must have completed a minimum of 20 qualifying years of service, the last 6 years of which must have been in a Reserve component. An audit of his record shows his last 3 years of qualifying service were in a Reserve Component. Therefore, he is ineligible to receive retired pay.

11. His Chronological Statement of Retirement Points, dated 16 January 2013, credits him with 21years, 3 months, and 24 days of qualifying service for a nonregular (Reserve) retirement. This statement further shows:

a. During the retirement year beginning on 1 April 1981 to the retirement year ending (RYE) on 31 March 1986, he earned 1 qualifying year each year for a total of 5 years of qualifying service for retirement.

b. During the retirement year beginning on 1 April 1986 to the RYE on
31 March 1999, he earned 365 active duty points each year for a total of
13 years of qualifying service for retirement.

c. During the retirement year beginning on 1 April 1999 to the RYE on
24 July 1999, he earned 115 active duty points and received credit for
3 months and 24 days of qualifying service for retirement.

d. During the retirement year beginning on 25 July 1999 to the RYE on
24 July 2002, he earned 1 qualifying year each year for a total of 3 years
of qualifying service for retirement.

e. During the retirement year beginning on 25 July 2002 to the RYE on
12 November 2002, he earned 4 inactive duty points and 5 membership points.

f. During the retirement year beginning and ending on 13 November 2002, he earned zero points.

REFERENCES:

1. Army Regulation 140-11 (U.S. Army Reserve Reenlistment Program), in effect at the time, established the retention control point (RCP) for each grade of rank. Table 8-1 shows, in pertinent part, that the RCP for a SGT/E-5 was 20 years.

2. Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing granting retired pay to Soldiers and former Reserve Component Soldiers. Paragraph 2-1 states to be eligible for retired pay, an individual need not have a military status at the time of application, but must have attained age60, completed a minimum of 20years of qualifying service, and at that time, served the last 6 of his qualifying years as a Reserve Component Soldier.

DISCUSSION:

1. The evidence of record shows on 25 July 1999, he enlisted in the USAR and served 3 years of qualifying service prior to his discharge on 13 November 2002.

2. Although documentation concerning his reason for discharge was not in his available records, it appears that he was unable to reenlist due to reaching his RCP. This assumption is based on the fact that he was an E-5 with over 20 qualifying years of service at the time of separation and he received full involuntary separation pay in the amount of $30,058.09.

3. Nevertheless, there is no evidence and he did not provide any to show he received a 20-year letter or that he served the last 6 years of his qualifying years as a Reserve Component Soldier as required by regulation.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150010103

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150010103

4

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2