2. The applicant requests that his discharge from the USAR be voided and that he instead be transferred to the Retired Reserve.
3. He states, in effect, that he was not given the opportunity to be transferred to the Retired Reserve and that when he requested transfer to the Retired Reserve in October 1994, because of the frustration he was experiencing in not receiving answers to his letters to the Army Reserve Personnel Center (ARPERCEN), he was informed by a letter from the ARPERCEN dated 22 February 1995 that he had already been discharged on 19 January 1995 because he had failed to respond to a letter from the ARPERCEN in February 1994, which was returned unclaimed. He goes on to state that not only did he not receive the notification letter, he continued to correspond with the ARPERCEN and that as late as 27 March 1995 he received a letter from the ARPERCEN indicating that he was in the zone of consideration for promotion. He continues by stating that had he received the election form allowing him to transfer to the Retired Reserve he would have completed it and returned it as directed in to be afforded the benefits he has earned. In support of his application he submits copies of the letters he submitted to the ARPERCEN and copies of the correspondence and orders he received.
4. The applicant's military records show that he was born on 26 September 1942 and initially inducted on 26 October 1966. He was commissioned as a USAR second lieutenant upon graduation from OCS on 20 November 1967 and continued to serve on active duty until he was honorably released from active duty in the rank of captain and transferred to the USAR Control Group (Reinforcement) on 31 August 1975.
5. On 30 June 1990 the ARPERCEN notified the applicant (20-year letter) that he had completed the required years of service to be eligible for retired pay upon application at age 60 (26 September 2002).
6. On 19 January 1995 the ARPERCEN published orders discharging the applicant from the USAR the same day.
7. On 22 February 1995 the ARPERCEN Office of the Inspector General, in response to a request for assistance, notified the applicant that he had failed to respond to a memorandum in February 1994 in which he could have elected to be transferred to the Retired Reserve and which was returned undelivered. Therefore, since he had failed to respond in the time allotted, he had been discharged from the USAR. The ARPERCEN informed the applicant that his only recourse was to apply to this Board.
8. On 27 March 1995 the ARPERCEN sent the applicant a memorandum informing him that he was in the zone of consideration for promotion to the next higher rank (colonel).
9. 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 an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.
10. 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 1-3 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.
11. 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.
CONCLUSIONS:
1. The applicant's honorable discharge from the USAR was accomplished in accordance with law and regulations applicable at the time.
2. However, it appears that the applicant, for reasons unknown, did not receive the notification from the ARPERCEN which informed him that he was eligible for transfer to the Retired Reserve and afforded him the opportunity to do so or risk being discharged.
3. Therefore, it is reasonable to presume that had the applicant received the notice that was sent prior to his being discharged from the USAR, he would have elected to be transferred to the Retired Reserve.
4. 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 military records by voiding his discharge of 19 January 1995 and assigning him to the Retired Reserve effective the same day.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected:
a. by voiding the 19 January 1995 discharge from the USAR of the individual concerned; and
b. by showing that he was transferred to the Retired Reserve effective 19 January 1995.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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