2. The applicant requests that his discharge from the USAR be voided and that he instead be transferred to the Retired Reserve.
3. The applicant states that he was on vacation with his wife at the time the notice from the Army Reserve Personnel Center (ARPERCEN) arrived notifying him that he would have to be discharged or transferred to the Retired Reserve by 26 August 1995. He goes on to state that the letter was unclear as to when the option election statement had to be returned but he understood that it would have to be before his mandatory removal date of 26 August 1995. He further states that he returned the option statement electing transfer to the Retired Reserve and shortly thereafter received orders discharging him from the USAR.
4. The applicant's military records show that the ARPERCEN notified the applicant on 8 September 1993 that he had completed the required years of service to be eligible for retired pay upon application at age 60.
5. On 26 April 1995 the ARPERCEN notified the applicant by mail that he had completed the maximum allowable service under the law and that he must either be transferred to the Retired Reserve or discharged by 26 August 1995. The notification letter contained an option form for the applicant to complete and specified that it must be returned no later than the suspense date indicated (26 May 1995).
6. The applicant completed the option form on 27 June 1995, a month after the suspense date indicated on the letter of notification. However, because the applicant failed to respond by the established suspense date, discharge orders were published on 16 June 1995 discharging him effective 25 August 1995.
7. Army Regulation 140-10, in effect at the time, set forth the basic authority for the assignment, attachment, detail and transfer of Army Reserve 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.
8. Due to recent Departmental changes, certain benefits, such as commissary and post exchange privileges, accrue to Reservists with more than 20 of qualifying service who are transferred to the Retired Reserve that do not accrue to those who are discharged.
9. Army Regulation 135-178, in effect at the time, established the policies, standards, and procedures governing the administrative separation of enlisted soldiers from the reserve components. Paragraph 1-30 stated, in pertinent part, that orders discharging a soldier would not be revoked or the effective date changed after the effective date of discharge unless there was evidence of manifest error or fraud. After the effective date of discharge, orders could be amended by the separation authority only to correct manifest errors such as the wrong character of service or correct administrative errors such as errors concerning rank, social security number, or misspelled name.
CONCLUSIONS:
1. The applicants contention that the notification letter was unclear as to when the election statement was to be returned to the ARPERCEN is without merit. Not only was the notification letter very specific regarding the date the option statement was to be returned, but the letter was a standard military letter format containing a suspense date that should have easily been understood by someone of the applicants rank and experience.
2. However, it is not unreasonable to expect the Department to revoke the discharge orders if the election option statement was received prior to the effective date of discharge from the USAR. While the Board recognizes that suspense dates are established to ensure actions are accomplished in a timely manner, extenuating circumstances that may arise that cause an individual to miss an established suspense date should not necessarily serve as the basis for denying an individual a benefit that they might otherwise be entitled.
3. In view of the foregoing and since the applicant meets the eligibility requirements for assignment to the Retired Reserve, it would be equitable and just to correct his records as recommended below.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected:
a. by voiding the 25 August 1995 discharge from the Army Reserve of the individual concerned; and
b. by showing that he was transferred to the Retired Reserve effective 25 August 1995.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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