APPLICANT REQUESTS: The applicant requests that his discharge from the USAR be voided and that he instead be transferred to the Retired Reserve.
APPLICANT STATES: That he returned his election form within the suspense date indicating his desire to be transferred to the Retired Reserve rather than to be discharged. Nonetheless, he was discharged contrary to his election.
EVIDENCE OF RECORD: The applicant's military records show:
He was commissioned as a USAR second lieutenant on 23 December 1965 and was promoted to the rank of captain on 8 July 1969.
On 12 February 1973, while assigned to the USAR Control Group (Reinforcement), the applicant was notified by mail that he had failed to earn the 27 points required to qualify for a retirement year in 1972 and that failure to respond within 15 days would result in administrative separation. The applicant did not respond and was honorably discharged on 12 April 1973.
Consequently, the applicant applied to this Board in 1978 and indicated that he had departed the country during the time he was discharged and that after returning to the United States he requested assignment to a troop program unit in Miami, Florida. The applicant drilled with the unit for about 7 months before discovering that he had been discharged and was ineligible to receive drill pay. The Board determined at that time that the applicants discharge was in accordance with applicable laws and regulations. However, the Board believed that the applicant was unaware of his responsibility to earn retirement points while in the Control Group and opted to grant him relief by voiding his discharge and assigning him to a unit in an active Reserve status.
The applicant was promoted to the rank of major in the USAR on 23 January 1983.
On 18 October 1990 the Army Reserve Personnel Center (ARPERCEN) sent the applicant a notice informing him that he had been twice nonselected for promotion to the rank of lieutenant colonel and that he was required to complete and return an option selection form within 30 days or he would be discharged in accordance with law. The notice was sent to the same address as indicated on his application to this Board dated 21 September 1992. A copy of the notice contained in his records is stamped NO REPLY with a date of 26 November 1990.
The ARPERCEN published orders on 5 December 1990 that honorably discharged the applicant from the USAR effective 27 October 1990. The applicants records indicate that he has only 11 qualifying years for retirement, therefore, he has not been issued a 20-year letter.
The applicant sent a letter to the ARPERCEN on 22 July 1992 regarding his discharge. He contended at that time that he was going through a divorce in 1989 and his ex-wife got the notice and kept if for a couple of months before giving it to him. He also contended that the notice was sent to his old address. His letter at that time contained the same address that was indicated on the original notice and the discharge orders.
Army Regulation 135-175 establishes the policies, standards, and procedures governing the administrative separation of officers from the reserve components. It states, in pertinent part, that an officer who is removed from active status as a result of being twice nonselected for promotion will be discharged if he is eligible and fails to apply for transfer to the Retired Reserve within 30 days from the date he is advised that he is being removed from active status. The orders discharging a soldier will 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 may 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.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The applicants discharge from the USAR was accomplished in accordance with applicable laws and regulations then in effect with no indication of any violation of the applicants rights.
2. The applicants contention that the notice of his nonselection and subsequent discharge orders were sent to his old address is without merit. The notice and orders were sent to the address that the applicant cited on his application to this Board 2 years later.
3. The Board has previously given the applicant the benefit of the doubt in a similar situation involving his discharge from the USAR; however, the circumstances in this case do not warrant such consideration.
4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
5. In view of the foregoing, there is no basis for granting the applicants request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Karl F. Schneider
Acting Director
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