PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 16 April 2002
         DOCKET NUMBER: AR2001063847


         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:

Ms. Irene N. Wheelwright		Chairperson
Mr. John T. Meixell		Member
Ms. Melinda M. Darby		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 that he be reinstated in the Individual Ready Reserve (IRR) in order to complete his current enlistment. In the alternative, he requests transfer to the Retired Reserve.

3. The applicant states that he misinterpreted the participation portion of his contract and that he was not provided the opportunity for training due to lack of funds. He also states that he was unjustifiably removed from his contract. In
support of his application, he submits copies of: a US Army Reserve Personnel Command (AR-PERSCOM) Memorandum, dated 2 July 2001; AR-PERSCOM Orders D-09-145585, dated 27 September 2001; a Soldier Management System (SMS) Record; ARPC Form 249-2-E (Chronological Statement of Retirement Points), dated 23 February 2001; ARPC FL 3948 (Nonparticipation/Election of Options), dated 24 April 2001; a DD Form 4/1 (Enlistment/Reenlistment Document), dated 6 November 1999; a copy of his DA Form 3540-R
(Certificate and Acknowledgement of US Army Reserve Requirement and Methods of Fulfillment), dated 6 November 1999; and a copy of his Notification of
Eligibility for Retired Pay at age 60 (20-Year Letter), dated 28 October 1999.

4. The applicant’s military records show he enlisted on 17 October 1972, and continued to serve until he was honorably discharged on 21 January 1986. He enlisted in the USAR on 22 January 1986, and continued to serve in the USAR through a series of continuous reenlistments.

5. On 28 October 1999, 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).

6. The applicant provided a copy of his DD Form 4/1, dated 6 November 1999, which shows that he enlisted for a period of 6 years. The contract stated, in pertinent part, that he was subject to separation during or at the end of his enlistment. If his behavior failed to meet acceptable military standards, he may be discharged and given a certificate for less than honorable service, which would hurt his future job opportunities and his claim for veteran’s benefits.

7. The applicant provided a copy of his DA Form 3540-R, dated 6 November 1999. Section VI stated, in pertinent part, that as a member of the Ready Reserve or Selected Reserve of the US Army Reserve, he must participate satisfactorily during the entire period of his enlistment, reenlistment, immediate reenlistment, transfer, assignment, or reassignment in accordance with the rules and regulations now in effect, or which would thereafter be placed in effect, by the proper authority.




8. On 24 April 2001, the applicant received a Nonparticipation Memorandum/
Election of Option Form with a suspense date of 24 May 2001. The memorandum informed the applicant that he was identified as not earning
50 points during his most recent retirement year ending (RYE) and to complete
the reverse side of the form. The applicant requested a waiver that was a one-time option and indicated that he had earned 50 retirement points for his most recent RYE.

9. On 2 July 2001, AR-PERSCOM notified the applicant that the command had not received his reply regarding his Election of Option. He was informed that in accordance with regulation, those soldiers eligible for transfer to the Retired Reserve and who failed to elect an option within a stipulated time would be discharged. The applicant was afforded another opportunity to indicate his preference due to his years of service in the USAR.

10. The applicant was honorably discharged from the USAR on 4 October 2001, in the rank of Sergeant First Class (SFC).

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

12. 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 an 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. Paragraph 7-3.1 of the regulation states that an enlisted solder who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status. Enlisted soldiers who failed to attain 50 points by the anniversary of their retirement year ending (RYE) date will be removed from an active status.

14. Paragraph 7-12, of the regulation states that there are exceptions to specific reasons for removal from an active status. Failure to earn the required 50 retirement points may be authorized by the area commander (for soldiers assigned to a troop program unit (TPU) or by the Commander, AR-PERSCOM.
USAR soldiers must request a waiver and submit documentation to show that nonparticipation was due to circumstances beyond their control. Such circumstances are defined as those of personal or temporary nature such as illness or civilian employment. A waiver of nonparticipation may be granted only on a one-time basis for failure to earn the required 50 points during a retirement year.

15. 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 states, 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 to correct administrative errors such as errors concerning rank, social security number, or misspelled name.

16. The term "good years" is an unofficial term used to mean years in which 50 or more retirement points are earned during each year, and which count as qualifying years of service for retirement benefits at age 60.

CONCLUSIONS:

1. The Board notes his contention that he should be reinstated in the IRR in order to complete his current enlistment. The evidence of record shows that as a member of the IRR, who had completed 20 years of qualifying service for retired pay, he was required to earn a minimum of 50 points in each subsequent RYE; however, he failed to earn 50 retirement points, was declared an unsatisfactory participant, and was discharged. Therefore, he is not entitled to be reinstated in the IRR to complete his current enlistment.

2. The evidence of record shows that the applicant was notified in writing that he had not earned 50 points during his most recent RYE and to complete the reverse side of the nonparticipation memorandum (Election of Option). He requested a waiver that was a one-time option and indicated that he had earned 50 retirement points for his most recent RYE. However, evidence shows that he did not provide any evidence of earning 50 points for his RYE of 21 January 2000.

3. The applicant was notified by AR-PERSCOM that his reply regarding his Election of Option had not been received and that those soldiers eligible for transfer to the Retired Reserve and who failed to elect an option within a stipulated time would be discharged.

4. The applicant was discharged in accordance with law and regulations and there is no evidence of injustice in his discharge process.






5. The Board notes that the applicant’s ARPC Form 249-2-E, dated 23 February 2001, shows that he completed 20 years of qualifying service for retirement purposes and that he meets eligibility requirements for assignment to the Retired Reserve. Therefore, it would be equitable and just to correct his military records by revoking his discharge dated 4 October 2001, and by assigning him to the Retired Reserve effective the same date.

6. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

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

a. by revoking the 4 October 2001 discharge from the USAR; and

b. by showing that he was transferred to the Retired Reserve effective
4 October 2001.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

___iw__ __jm___ __md___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___ Irene N. Wheelwright __
                  CHAIRPERSON

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INDEX

CASE ID	AR2001063847
SUFFIX
RECON
DATE BOARDED	20020416
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	20011004
DISCHARGE AUTHORITY	AR 135-178
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 332
2.
3.
4.
5.
6.