MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 May 2002
         DOCKET NUMBER: AR2001064362

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

Mr. Carl W. S. Chun		Director
Ms. Beverly A. Young		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. John N. Slone		Member
Mr. Terry L. Placek		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

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APPLICANT REQUESTS: In effect, that his discharge from the U.S. Army Reserve (USAR) be voided and that he be transferred to the Retired Reserve with entitlement to retirement benefits.

APPLICANT STATES: That he was not informed nor did he receive notice of the discharge action. He believes the fact he was a dental officer and was eligible to stay longer was overlooked. He states, in effect, that he will accept transfer to Retired Reserve with an effective date of 1994 to reduce any complications. He claims that he would not have served 33 years without getting retirement benefits. The applicant did not submit any evidence in support of his application.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant was born on 30 August 1934. He completed a Doctorate in Dental Medicine at the University of Alabama in May 1961. On 17 August 1961, he was appointed as a Reserve commissioned officer in the rank of first lieutenant in the Dental Corps Branch.

He continued to serve in the Reserve until he was discharged in the rank of colonel effective 31 August 1994 by U.S. Army Reserve Personnel Center Orders Number D-07-558434, dated 13 July 1995. At the time of his discharge, the applicant was 60 years old.

There is no evidence available to the Board which indicates the applicant requested to be transferred to the Retired Reserve or that he requested to be retained in an active status until he reached 67 years old.

The applicant's records do not contain a letter of Eligibility for Retirement Benefits at age 60; however, the Reserve Retirement Points Accounting System shows that he had 24 years of qualifying service for retired pay and that he was issued his 20 year certification on 14 March 1987.

In the processing of this case, an advisory opinion was obtained from the Transition and Separation Branch at the Army Review Boards Agency Support Division in St. Louis, Missouri. The opinion points out that the applicant was honorably discharged from the U.S. Army Reserve effective 31 August 1994 per letter order number D-07-558434 dated 7 March 2001 (sic). The opinion further points out that discharge orders were published because the applicant had reached the maximum authorized age (60) in accordance with Army Regulation 135-175, paragraph 4-4. That office opined that eligible soldiers must request transfer to the Retired Reserve under the provisions of Army Regulation 140-10, paragraph 6-1 and that this Command does not have the authority to transfer an officer to the Retired Reserve unless the officer specifically requests such a transfer. The opinion states that certain officers assigned to a branch of the Army Medical Department were eligible for retention beyond maximum age 60 to age 64 to meet the needs of the Army if the retention is requested and granted by this Command. In conclusion, the opinion states that there is no record that the applicant requested retention or was granted retention and that the discharge orders issued were valid and should not be revoked.

On 7 January 2002, the applicant was provided 30 days in which to submit comments or rebuttal to the advisory opinion. On 31 January 2002, the applicant submitted a rebuttal to the advisory opinion. In summary, the applicant contends that if he had been given knowledge of the discharge in 1994, he would have requested a retirement status at that time. He states that he must protest this action and ask to be changed to a retirement status effective 1994. He feels that he is also entitled to all benefits that accompany the retirement status based on his thirty plus years of active and Reserve duty.

Title 10, United States Code, Section 14703, governs the authority to retain chaplains and officers in medical specialties until specified age. Section 14703(a)(1) states, in pertinent part, that the Secretary of the Army may, with the officer’s consent, retain in an active status any reserve officer assigned to the Medical Corps, the Dental Corps, the Veterinary Corps, the Medical Services Corps (if the officer has been designated as allied health officer or biochemical sciences officer in that Corps), the Optometry Section of the Medical Services Corps, the Chaplains, the Army Nurse Corps, or the Army Medical Specialists Corps. Section 14703(a)(1)(b) states that an officer may not be retained in active status under this section later than the date on which the officer becomes 67 years of age (or, in the case of a reserve officer designated as a chaplain, 60 years of age).

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 that 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.

Army Regulation 135-175 provides policy, criteria, and procedures governing the separation of officers of the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR), except for officers serving on active duty or active duty for training exceeding 90 days. Paragraph 4-4 pertains to the removal from an active status and that removal will be by discharge, transfer to the Retired Reserve (if eligible and requested by the member) or, if eligible, transfer to Control Group (Inactive). It states, in pertinent part, that an officer who is removed from an active status 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 an active status.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The applicant was properly discharged from the Army Reserve effective 31 August 1994 upon reaching age 60.

2. The Board noted the applicant's contention that he was not notified of this action. However, the address on the applicant's orders is the same address which appears on the applicant's DD Form 149 submitted to this Board.

3. The Board also noted the applicant's contention that he had been "Ok'd to stay longer." However, there is no evidence of records which shows that the applicant applied for continued service as a Dental Corps Officer or that the Commanding Officer of the Army Reserve Personnel Command (AR-PERSCOM) approved the applicant's continued service to age 67.

4. Based on the foregoing, the Board determined that there is no error or injustice in regard to the applicant's current status. The applicant has not yet applied for non-regular retired pay and benefits, and may do so at anytime.

5. 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 this requirement.

6. In view of the foregoing, there is no basis for granting the applicant's 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

JL_______ TLP_____ JNS_____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001064362
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	Y20020509
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	19940831
DISCHARGE AUTHORITY	AR135-175
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	136.0000
2.
3.
4.
5.
6.