PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 28 January 2003
         DOCKET NUMBER: AR2002074446


         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Tracey L. Pinson		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 his discharge from the United States Army Reserve (USAR) be voided and that he instead be transferred to the Retired Reserve.

3. The applicant states, in effect, that at the time he transferred from a troop program unit (TPU) to the Individual Ready Reserve (IRR) in September 1997, he did so with the intentions of continuing his career when training opportunities were available. However, he was involved in a burn accident on 2 October 1998 (2^nd and 3^rd degree burns to 44% of his body surface) and could not attend training while he was recuperating. He goes on to state that he received an offer to train at Fort Lewis, Washington, in August 1999; however, doctors advised him that the compression garments he was required to wear as part of his rehabilitation would cause him to overheat in physical training. He further states that he wrote to officials at the Army Reserve Personnel Command (ARPERSCOM) explaining his circumstances and stated that he would attend training when released from his doctor’s care. Inasmuch as he continued to receive his commissary card every year, he assumed that his services were not needed. When his expiration of term of service arrived in January 2002, he went to the nearest military installation with his 20-year letter and expired identification (ID) Card, expecting to get a Retired ID Card. It was at this time that he was informed that he was not in the system, so he contacted officials at the ARPERSCOM and was informed that he had no status because he had been discharged in January 2000. He continues by stating he can continue to be a vital asset to his country if needed during a recall and is willing to submit to a physical examination at his own expense if the Board so desires. In support of his application he submits a statement from his doctor explaining his circumstances at the time, a commissary card that expired on 31 December 2002, and a copy of his chronological statement of retirement points dated 24 August 2001.

4. The applicant’s military records show that he initially enlisted in the Regular Army on 11 June 1970 for a period of 3 years. He successfully completed his training and was transferred to Vietnam on 1 November 1971, for duty as a combat medic. He completed his tour in Vietnam on 25 June 1972 and was returned to the United States, where he served until he was honorably released from active duty on 8 June 1973 and was transferred to the USAR Control Group (Reinforcement). He had served 2 years, 11 months and 28 days of total active service and was awarded the Bronze Star Medal, the Combat Medical Badge, the Parachutist Badge, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal. He was honorably discharged from the USAR on 1 June 1976.

5. On 18 August 1978, he enlisted in the USAR and served in infantry and special forces units at Fort Meade in the capacity of an infantryman with airborne, pathfinder, ranger and special forces qualifications. He also served as an engineer sergeant and senior legal clerk. He was promoted to the pay grade of E-7 on 4 November 1992.

6. On 1 September 1994, he was transferred to USAR unit in Richmond, Virginia, for duty as an opposing force (OPFOR) observer/controller.

7. The applicant reenlisted on 6 January 1996 for a period of 6 years, which made his expiration of term of service (ETS) 5 January 2002.

8. On 30 October 1996, the ARPERSCOM notified the applicant (20-year letter) that he had completed the required years of service to be eligible for Retired pay at age 60 (28 May 2013). His 20-year letter informed him that he must earn a minimum of 50 points each retirement year to retain active status and that the requirement may be waived for valid reasons, such as personal hardship, but that only one waiver could be granted.

9. On 1 September 1997, he was voluntary transferred to the USAR Control Group (Reinforcement).

10. On 2 October 1998, while serving as a Department of the Army civilian in the Military District of Washington, the applicant was injured when a hydraulic fuel line ruptured and ignited his clothing and his body, causing 2^nd and 3^rd degree burns to 44% of his body.

11. On 29 January 1999, the applicant was honorably discharged from the USAR due to failure to maintain an active status in the USAR after attaining 20 qualifying years of service for retired pay.

12. In the processing of this application the ARPERSCOM, Transition and Separation Branch provided a memorandum to the Board explaining that a notification and option letter was dispatched to the applicant and he failed to respond. Accordingly, because he did not request transfer to the Retired Reserve, he was discharged.

13. A copy of the memorandum was dispatched to the applicant for comment and no comment was received back from the applicant. However, a staff member of the Board contacted the applicant, who explained that he did respond to the memorandum within the time constraints applied and was still waiting for a response from the Board.

14. The applicant also explained that he did not receive the notification from the ARPERSCOM or did not remember receiving it because it was during the time he was going through rehabilitation for his injuries. However, it was never his intent to have his career end in a discharge. He further stated that he believes that he can still contribute to his country and the Army if needed and is willing to do so, however, he will accept any decision the Board makes in his case. He closed by stating that he is already receiving the benefits associated with having received a 20-year letter and that he is not motivated by the monetary aspect of being in the Retired Reserve, but simply by the prospect that he may again be needed to serve his country if needed.

15. A review of the applicant’s records shows that he was an exceptional soldier in all aspects of his military career. His records contain no derogatory information and show that his entire career has been one of selfless service, dedication to duty and numerous accomplishments.

16. His Chronological Statement of Retirement Points shows that he had 21 years, 11 months and 29 days of qualifying service for retirement purposes. During the period of 18 August 1997 to 17 August 1998, he only earned 15 membership points and during the period of 18 August 1998 to 29 January 1999 (discharge date), he only earned 7 membership points.

17. A review of the doctor’s statement submitted by the applicant with his application confirms the extent of the applicant’s injuries and explains that following his discharge from the hospital on 27 October 1998, he underwent a rehabilitation program and was instructed to wear compression garments for a period of 12 months, which limited his ability to participate in military activities. He further indicates that the applicant had an exceptional outcome and now has full range of motion to all extremities and no restrictions on activities of any kind.

18. 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.

19. Army Regulation 135-178, in effect at the time, established the policies, standards, and procedures governing the administrative 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 a manifest error or fraud. After the effective date of discharge, orders could not 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.


CONCLUSIONS:

1. The applicant’s honorable discharge from the USAR was accomplished in accordance with law and regulations applicable at the time.

2. However, the applicant was discharged 3 years prior to his ETS and the Board finds that given the circumstances in this case (applicant injured) and his expressed desire to continue to serve after his rehabilitation, an exception to policy or waiver was warranted.

3. Had the applicant been granted or reminded (due to circumstances) that he could have requested a 1-year waiver at the time he contacted the ARPERSCOM regarding his inability to participate in training (remain active), he would have had until August 1999 to attain the necessary points to remain active in that year. However, he was discharged in January 1999, before the second retirement year ending (RYE) had elapsed.

4. The Board also notes that the applicant did not request transfer to the USAR Control Group (Reinforcement) until well after he had received his 20-year letter, which is indicative that he still desired to remain active, because he could have requested transfer to the Retired Reserve at that time. Therefore, it is reasonable to presume that the applicant did not receive his option notification prior to being discharge.

5. In any event, the applicant has an exemplary record of service to his country both in peace and wartime and the Board finds that both the applicant and the Army would benefit by the prospect of his continued service.

7. 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 be corrected by voiding the 29 January 1999 discharge from the USAR pertaining to the individual concerned and by transferring him to the Retired Reserve effective 29 January 1999.

BOARD VOTE :

___ kak __ __ mm ___ __ tp ____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Karol A. Kennedy____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002074446
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/01/28
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1999/01/29
DISCHARGE AUTHORITY	AR135-178
DISCHARGE REASON	FAIL TO PART
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 341	136.0300/RET RES
2.
3.
4.
5.
6.