MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 October 2002
         DOCKET NUMBER: AR2002068192

         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
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Ms. Margaret V. Thompson		Member
Mr. Richard T. Dunbar		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)

---

APPLICANT REQUESTS: In effect, that his discharge from the United States Army Reserve (USAR) be voided and that he be transferred to the Retired Reserve in lieu of being discharged.

APPLICANT STATES: In effect, that in September 1995, he requested retirement from the USAR. At that time he had completed more than 28 years of continuous service with the active Army and in the Reserve Components. He states that his identification (ID) card expired and when he tried to renew it, he discovered that he no longer existed in the Army system. Upon investigation, he found that orders had been published transferring him to the IRR, and he was subsequently dropped from the IRR for non-participation. He claims that he was under the impression he had retired, and still does not recall receiving orders to the IRR or a welcome letter from them outlining the requirements. He claims that if he knew a problem existed, he would have corrected it at the time. He had a good job, a very good rank, and good commanders, why would he want to go into the IRR. He states that he is proud of his 28 year Army career and his accomplishments, and therefore, he requests that he be formally retired as of
31 December 1995, and have the IRR blemish removed from his records. He claims that he needs a current ID card and is three years away from his
60^th birthday and he plans to use his Army benefit.

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

He served in various capacities in the Reserve Components from 14 June 1967 through 21 May 1997, and on 19 December 1995, Orders Number 95-353-018, published by Headquarters, 104^th Division, Vancouver, Washington, directed his reassignment from his troop program unit to the USAR Control Group (IRR),
St. Louis, Missouri, effective 31 December 1995. The authority for this reassignment was Army Regulation 140-10 and the reason was voluntary reassignment.

On 31 October 1996, a Chronological Statement of Retirement Points
(ARPC Form 249-2-E) pertaining to the applicant was published by the ARPERSCOM. This document confirms that as of the Retirement Year Ending (RYE) on 13 August 1996, he had completed 28 years of qualifying service for retired pay.

Orders Number D-05-740430, dated 21 May 1997, published by the ARPERSCOM, directed the applicant’s honorable discharge from the USAR, effective 21 May 1997.

---

In connection with the processing of this case, an advisory opinion was requested of and received from ARPERSCOM transition and separation officials, dated 21 March 2002. The ARPERSCOM official responding indicated that the applicant had been notified that he had not earned enough points during his RYE in August 1996, and he did not request to be transferred to the Retired Reserve at that time. The official further explains that the normal practice of ARPERSCOM is to send a notification letter and option form to a member within 120 days of their RYE. In the applicant’s case, this notification was sent to the address on file for him at the time, and he was given more than the normal 30 day suspense before discharge orders were published on 21 May 1997. The official further stated that by regulation, eligible soldiers must request transfer to the Retired Reserve, and those who do not elect to be transferred to the Retired Reserve within 30 days of the date they are notified that they are being removed from an active status will be discharged. Since no request for transfer to the Retired Reserve was received from the applicant, his discharge orders were issued in accordance with the regulation. In addition, the official points out that the applicant is now eligible for “Grey Area Benefits” from a discharged status and his retired pay will not be jeopardized by his status. Finally, the official states that since all laws and regulations were followed in the applicant’s case, his discharge orders are valid and should not be revoked.

On 11 April 2002, the applicant was provided a copy of the ARPERSCOM advisory opinion in order to be provided the opportunity to respond. To date, he has failed to reply.

Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR soldiers. Chapter 7 contains guidance on removal from active status and paragraph 7-1a indicates that soldiers removed from active status will be discharged or transferred to the Retired Reserve upon their request if they are eligible.

A Secretary of Defense Memorandum, dated 29 October 1999, granted former members of the Reserve Components, who are eligible to receive retired pay at age 60, the entitlement to receive those benefits authorized by chapter 54 of Title 10 of the United States Code, which are normally associated with being in the Retired Reserve.

---

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 Board notes the applicant’s request that his USAR discharge be voided and that he be transferred to the Retired Reserve, but it finds an insufficient evidentiary basis for the requested relief.

2. The evidence of record confirms that the applicant was transferred to the IRR and discharged from the USAR in accordance with applicable regulations and there is no evidence to suggest that his maintaining his current status would result in his losing any of his earned benefits.

3. The Board understands the applicant’s confusion and concern over his status in regard to his being transferred to the Retired Reserve. However, it wishes to advise him that his membership in the Retired Reserve is not a prerequisite to receive retired pay at age 60. Even though he was discharged from the USAR, he remains eligible to apply for retired pay at age 59½ and to receive retired pay at age 60.

4. In addition, a Secretary of Defense Memorandum, dated 29 October 1999, granted former members of the Reserve Components, who are eligible to receive retired pay at age 60, the entitlement to receive those benefits authorized by chapter 54 of Title 10 of the Untied States Code. In order to make the applicant aware of the scope of his benefit entitlement, the Board is enclosing a copy of this memorandum with this decisional document.

5. 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

__JHL__ __MVT__ ___RTD__ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002068192
SUFFIX
RECON
DATE BOARDED	2002/10/17
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1997/05/21
DISCHARGE AUTHORITY	AR 135-178
DISCHARGE REASON	Non-Participation
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 338	136.0000
2.
3.
4.
5.
6.