IN THE CASE OF: BOARD DATE: 25 November 2008 DOCKET NUMBER: AR20080014223 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, in effect, that his Army National Guard discharge orders, dated 6 December 1995, be revoked and that he be transferred to the Retired Reserve effective 11 December 1995. 2. The applicant states that when he was separated from the Army National Guard he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). He contends that he should have been transferred to the Retired Reserve and that he did not receive adequate information about the effects of being in the USAR Control Group. He states that he did not understand that cost of living allowances (COLA) would be suspended while he was a member of the Control Group and that it was his understanding that the COLAs would continue to be in effect until he turned age 60, at which time his retirement would commence. 3. The applicant provides a copy of his discharge orders. 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. The applicant was born on 7 December 1948. Having prior service in the Army National Guard, he enlisted in the Army National Guard on 14 April 1990. 3. The applicant’s notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 17 July 1995. 4. Orders, dated 6 December 1995, show the applicant was honorably discharged in the rank of major from the Army National Guard and transferred to the USAR Control Group (Reinforcement) effective 11 December 1995. 5. The applicant's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was discharged on 11 December 1995 under the provisions of National Guard Regulation 635-100, paragraph 5a(3)(a), for resignation. 6. Orders, dated 21 December 1995, show that Federal Recognition was withdrawn and the applicant was transferred to the USAR effective 11 December 1995. 7. The applicant's requests for resignation/request for discharge are not available. 8. Orders, dated 8 January 1997, show the applicant was honorably discharged from the USAR effective 8 January 1997. 9. Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) states, in pertinent part, that eligible Soldiers must request transfer/assignment to the Retired Reserve. DISCUSSION AND CONCLUSIONS: In the absence of evidence to the contrary, such as his request for resignation, it must be presumed that the applicant’s request for resignation and his request for discharge from the Army National Guard and transfer to the USAR Control Group (Reinforcement) was properly processed. Therefore, there is no basis for granting the applicant's request. 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. __________XXX_______________ 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) AR20080014223 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080014223 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1