PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 19 April 2001
         DOCKET NUMBER: AR2001051422


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Curtis L. Greenway		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his discharge from the USAR be voided and that he instead be transferred to the Retired Reserve.

3. The applicant states, in effect, that customer service informed him that he made an election to be listed as a former member of the USAR; however, this election is in error. He was also informed by customer service that if he called within 2 years, it would have been changed by a phone call. He became aware of his status in July 2000 when he finally decided to obtain an identification (ID) card for use with the commissary card that he received in the mail. He also
states that he personally does not remember making any election to be listed as a former USAR member instead of retiring. If he signed or informed someone to place him in that category instead of retired, he did so without enough information to make an informed decision. He further states that had he known the consequences of his actions, he would not have made that selection. He states that when he received his discharge due to nonselection for promotion, he took that action to be part of the process of retiring. He goes on to state that
upon receipt of his 20-Year Letter he was qualified for transfer to the Retired Reserve, that he completed a survivor benefit form, received a yearly printout of his retirement points, which all meant to him that he was retired. He concludes by stating that he has always thought of himself as a “gray area” retiree and that he has earned the right to be retired with all benefits and privileges. In support of his application he submits a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of US Army Reserve Personnel Center Orders C-10-037635, dated 18 October 1984, a copy of Headquarters, Sixth
Army Orders 065-051, dated 14 August 1986, a copy of his Notification of
Eligibility for Retired Pay at age 60 (20-Year-Letter), dated 19 June 1992, a copy of DD Form 1883 (Survivor Benefit Plan Election Certificate), US Army Personnel Command (PERSCOM) Memorandum, dated 29 November 1993, a copy of US Army Reserve Personnel Center Orders D-11-494102, dated 2 November 1994, a copy of Form 1138 (Decree and Order to Post Change of Name), and a copy of ARPC Form 249-2-E (Chronological Statement of Retirement Points).

4. The applicant’s military records show he was commissioned from ROTC and ordered to active duty as a Reserve commissioned officer on 17 December 1971 in the rank of a Second Lieutenant. He continued to serve until he was released from active duty on 1 February 1984 under the provisions of Army Regulation 635-100, chapter 3, for failure of selection, permanent promotion. He was transferred to the USAR Control Group (Reinforcement).







5. On 18 October 1984, the applicant was released from the USAR Control Group (Reinforcement) and was assigned to Troop Program Unit (TPU) with an effective date of 16 October 1984.

6. On 14 August 1986, the applicant was released from the TPU and was assigned to the USAR Control Group (Reinforcement) with an effective date of 7 July 1986, due to no position vacancy for promotion to major.

7. On 19 June 1992, the Army Reserve Personnel Center (ARPERCEN) notified the applicant that he had completed the required years of service to be eligible for retired pay upon applicant’s age at 60 (20 Year Letter).

8. The applicant provided a copy of PERSCOM Memorandum, Subject; Notification of Promotion Status, dated 29 November 1993. This memorandum stated that a Department of the Army Reserve Components Selection Board convened to consider officers of the applicant’s grade for promotion. The
applicant was considered; however, he was not among those selected for promotion. This was a second failure. It also stated that the applicant must be separated from the USAR and that his commander would advise him of separation procedures and any options available to him by separate correspondence.

9. On 2 November 1994, the applicant was honorably discharged from the USAR in the rank of major/0-4.

10. The applicant provided a copy of his Chronological Statement of Retirement Points which shows that the applicant had completed 20 years of qualifying service for retirement purposes.

11. Army Regulation 140-10 (Assignments, Attachments, Details and Transfers) covers subject policy and procedures and, in pertinent part, provides detailed procedures regarding removal of Army Reserve members from an active status. Paragraph 7-4 requires removal of officers who are twice not selected for promotion to chief warrant officer three, chief warrant officer four, captain, major and lieutenant colonel.

12. Chapter 7 of the same 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.





13. Army Regulation 135-175 provides policy, criteria, and procedures governing the separation of officers of the National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR), except for officers serving on active duty or active duty training exceeding 90 days. Paragraph 4-4 pertains to the removal from an active status. It states, in pertinent part, that officers in the grade of first lieutenant, captain, or major who completed their statutory military obligation, will be discharged for failure to be selected for promotion after second consideration by a DA Reserve Components selection board.

CONCLUSIONS:

1. In the absence of evidence to the contrary, it must be presumed that the
applicant’s discharge was accomplished in accordance with law and regulations applicable at the time.

2. However, it is apparent that the applicant was qualified for transfer to the
Retired Reserve as indicated by the issuance of a 20 year letter and it appears that had the applicant been given the proper instructions on applying and completing the necessary forms for transfer to the Retired Reserves, that he
would have elected to do so.

3. Therefore, it is reasonable to presume that there was a misunderstanding in communications with ARPERCEN and the applicant. The Board believes that had the applicant received enough information pertaining to the options available to him, he would have completed the proper forms and returned the documents electing transfer to the Retired Reserve.

4. Inasmuch as the applicant meets eligibility requirements for assignment to the
Retired Reserve, it would be equitable and just to correct his military records by voiding his discharge of 1 April 1994 and assigning him to the Retired Reserve
effective the same date.

5. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case for the individual concerned be corrected:






a. by voiding the 1 April 1994 discharge from the USAR; and

b. by showing that he was transferred to the Retired Reserve effective
1 April 1994.

BOARD VOTE:

__js___ ___be___ ___cg___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____John N. Slone_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2001051422
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010419
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19940401
DISCHARGE AUTHORITY	AR 140-10
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 341
2.
3.
4.
5.
6.