APPLICANT REQUESTS: In effect, that his USAR discharge be voided and that he instead be transferred to the Retired Reserve. He states that he had previously requested assignment to the Individual Ready Reserve; however, he did not receive a response until May 1993, which indicated that he had been discharged.
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: The applicants military records show:
He enlisted in the Air Force on 2 September 1955 and served until 27 August 1959, when he was transferred to the Air Force Reserve (USAFR). He served in the USAFR until 1 September 1961. On 12 March 1962 he enlisted in the Army National Guard and continued to serve through continuous reenlistments.
On 6 November 1980 the National Guard Bureau notified the applicant that he had completed the required years of service to be eligible for retired pay upon application at age 60.
On 6 January 1984, Headquarters, First Army, Fort Meade, Maryland, published orders discharging the applicant from the USAR Control Group (Ready Reserve), effective the date of his scheduled expiration of term of service (7 January 1984). The orders were addressed to the same address as indicated in his application to the Board. There is no indication in the available records that indicates the applicant requested to extend or reenlist to remain in the USAR or that he requested to be transferred to the Retired Reserve in lieu of discharge. (NOTE: The discharge does not affect his eligibility for USAR retired pay, upon application, at age 60.)
Due to recent Departmental changes, certain benefits, such as commissary and post exchange privileges, accrue to Reservists with more than 20 years of qualifying service who are transferred to the Retired Reserve that do not accrue to those who are discharged.
Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail and transfer of USAR soldiers. Chapter 7 of the regulation relates to the removal of soldiers from active status and states, in pertinent part, that soldiers removed from active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.
Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed before 26 October 1961, or within 3 years after discovery of the alleged error or injustice, whichever is later. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 7 January 1984, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 7 January 1987.
The application is dated 1 June 1993 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.
BOARD VOTE:
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
David R. Kinneer
Executive Secretary
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