RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 October 2005 DOCKET NUMBER: AR20050001551 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Ms. Stephanie Thompkins Analyst The following members, a quorum, were present: Mr. Melvin H. Meyer Chairperson Mr. Allen L. Raub Member Ms. Linda D. Simmons Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction to his discharge status to show transfer to the Individual Ready Reserve (IRR) or Retired Reserve. 2. The applicant states that with 28 years service, 13 active Federal service and the remaining 15 years of good Reserve status service, does not warrant a total discharge from the service. His status should be changed to the appropriate category of retired or IRR. Many United States Army Reserve (USAR) members are still carried on the roles in either an IRR or Retired Reserve status after completing service. He believes discharging him was unjust. He also states that he was not offered a choice of status when he was released from active duty (REFRAD). He was under the belief that he would be carried in the IRR. It was not until he volunteered to support Iraqi Freedom that he discovered he had been discharged. 3. The applicant provides a memorandum in support of his application. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged error which occurred on 21 November 1997, the date of his REFRAD and discharge from the USAR/Active Guard Reserve. The application submitted in this case is dated 3 January 2005. 2. Title 10, United States 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. The applicant's military records show that he was appointed in the South Dakota Army National Guard (SDARNG) as a second lieutenant effective 23 July 1973, with prior enlisted service from 24 May 1969 through 22 July 1973. He was promoted to first lieutenant effective 22 July 1976. 4. He was separated from the SDARNG effective 29 March 1982 and transferred to the USAR Control Group (Reinforcement). He was promoted to captain effective 30 March 1982. 5. He entered on active duty in an Active Guard Reserve status effective 30 November 1986. He was promoted to major effective 29 March 1989. 6. On 30 July 1997, he was notified of his involuntary REFRAD based on his two non-selections for promotion to lieutenant colonel. The applicant acknowledged receipt of the notification on 11 August 1997. 7. His Chronological Statement of Retirement Points, dated 5 August 1997, shows he was credited with 26 qualifying years of service as of his retirement year ending date of 23 May 1997. 8. On 10 September 1997, Headquarters, US Army, Fort Shafter, Hawaii, published Orders 253-01 discharging the applicant from the USAR/Active Guard Reserve effective 21 November 1997. His separation orders do not show he was transferred to the IRR. His separation orders also show he had completed 26 years, 5 months and 28 days of total active Federal service on that date. 9. On 14 November 1997, the US Army Reserve Personnel Center, St. Louis, Missouri, published Orders C-11-701495 releasing the applicant from active duty effective 21 November 1997 and transferring him to the USAR Control Group (Reinforcement). 10. He was subsequently issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was REFRAD effective 21 November 1997 and transferred to the USAR Control Group (Reinforcement). 11. There is no evidence he was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). There is also no evidence of when and if he was separated from the IRR, or requested transfer to the Retired Reserve, or requested to be discharged. 12. Army Regulation 600-8-24, paragraph 2-41, prescribes the policy and procedures for the discharge of all officers on active duty for 30 days or more. This regulation specifies that Reserve commissioned officers serving on active duty who fail a second time to be selected for promotion will be processed for involuntary release from active duty on the 120th day after receipt of involuntary release notification. 13. Army Regulation 135-180 specifies, in part, that each Reserve component Soldier who completed 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 completed the service. 14. Army Regulation 140-10 provides, with some exceptions, for separation of majors for maximum age and/or service and promotion non-selection. It specifies that majors may not exceed 28 years of service or age 60. This regulation also provides that officers not selected for promotion to lieutenant colonel are required to be removed from an active status or, if qualified and if they so request, will be transferred to the Retired Reserve. 15. Title 10, United States Code, section 14506, states that an officer in the grade of major who twice fails to be selected for promotion to lieutenant colonel will be separated no later than the first day of the month, after the month in which the officer completes 20 years of commissioned service. 16. Title 10, United States Code, section 14513, states that a Reserve officer of the Army, who is in an active status and whose removal from an active status or from the Reserve active status list is required by section 14506 of this title shall: 1) be transferred to an inactive status if the Secretary concerned determines that the officer has skills which may be required to meet the mobilization needs of the officer's armed forces; 2) be transferred to the Retired Reserve, if the officer is qualified and applies for such transfer; or 3) if the officer is not transferred to an inactive status or the Retired Reserve, be discharged from the officer's Reserve appointment. DISCUSSION AND CONCLUSIONS: 1. The evidence of records shows that the applicant was qualified for transfer to the Retired Reserve in view of his completion of 26 qualifying years of service for Reserve retirement. 2. The available evidence shows the applicant was not selected for promotion to lieutenant colonel and subsequently removed based on his non-selections. He was REFRAD and transferred to the IRR effective 21 November 1997. His separation orders discharging him from the USAR/Active Guard Reserve effective 21 November 1997 do not show he was transferred to the IRR. There is no evidence in the available records, and the applicant has provided none, to show that he was issued a 20-year letter. 3. There is also no evidence in the available records, and the applicant has provided none, to show that he requested transfer to the Retired Reserve; however, had the applicant been given a choice or the opportunity to request transfer to the Retired Reserve it is likely he would have done so in a timely manner. 4. The applicant met the eligibility requirements for assignment to the Retired Reserve. It would now be equitable and just to correct his military records by issuing him a 20-year letter and assigning him to the Retired Reserve effective 23 November 1997, with entitlement to retired pay upon his application at age 60. BOARD VOTE: _ALR____ _MM____ __LDS__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing him a 20-year letter and assigning him to the Retired Reserve effective 23 November 1997, with entitlement to retired pay upon his application at age 60. __ Melvin H. Meyer_______ CHAIRPERSON INDEX CASE ID AR20050001551 SUFFIX RECON DATE BOARDED 2005/10/27 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION GRANT REVIEW AUTHORITY ISSUES 1. 136.00 2. 3. 4. 5. 6.