PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 3 October 2002
         DOCKET NUMBER: AR2002074840


         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Walter T. Morrison		Member
Mr. Charles Gainor		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.

---

2. The applicant requests, in effect, 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 sometime around his Mandatory Removal Date (MRD) of September 1996, he was discharged from the USAR. He claims that at the time the action was taken, he had no contact with Army Reserve Personnel Command (ARPERSCOM) personnel, and though he was still a member of the Individual Ready Reserve (IRR). He indicates that his current status is discharged, which has a direct effect on the amount of retired pay he will receive. He requests that his records be reviewed and that his status be changed from discharged to Retired Reserve effective on his MRD. He claims that he will be eligible to receive retired pay in September 2003, and that he must submit his retired pay application packet by December 2002. He also claims that the MRD listed in his records is incorrect and that he was in fact commissioned on 2 February 1971 not 7 September 1968.

4. The applicant’s military records show that on 2 February 1971, he was commissioned a second lieutenant (2LT) in the USAR. On 4 February 1971, he was transferred to the Army National Guard (ARNG) where he served until being transferred back to the USAR in 1985, and he completed over 20 years of qualifying service for retired pay prior to being discharged from the USAR in the rank and pay grade of major/0-4 (MAJ/0-4) on 26 March 1993.

5. On 14 July 1983, a letter (20 Year Letter) issued by the National Guard Bureau (NGB), Washington DC, notified the applicant that he had completed the required years of service necessary to qualify for retired pay at age 60.

6. On 16 April 1985, Orders Number 75-22, issued by the Office of the Adjutant General (OTAG), California ARNG, authorized the applicant’s honorable separation from the ARNG and his transfer to the USAR Control Group,
St. Louis, Missouri, effective 28 February 1985.

7. On 24 November 1992, the Chief, Office of Promotions, Reserve Components (RC), Total Army Personnel Command (PERSCOM), St. Louis, Missouri, published a memorandum notifying the applicant that he had been considered, but unfortunately not selected for promotion by a Department of the Army (DA) RC Promotion Selection Board. The memorandum also informed the applicant that because this was his second non-selection for promotion, he must be separated from the USAR. He was also advised that his commander would advise him of separation procedures and of any options available to him by separate correspondence.

---

8. On 16 July 1993, Orders Number D-07-358261, issued by ARPERSCOM, were addressed to the applicant. These orders directed the applicant’s honorable discharge from the USAR, effective 26 March 1993. These orders contains a stamped entry that indicates that the applicant although assigned to the organization, was not present for duty. In addition, that on 28 July 1993, a copy of discharge certificate and orders were being mailed to his last known address.

9. The last Chronological Statement of Retirement Points (ARPC Form 249-2-E) on file, dated 3 August 2001, shows that the applicant has earned a total of
106 membership points and no creditable qualifying service for retirement for the seven year period from 2 June 1985 through 1 June 1992.

10. In connection with the processing of this case, an advisory opinion was requested of and received from ARPERSCOM personnel officials, dated
13 August 2002. The response received was a routing and transmittal slip that contained a note indicating that the applicant was discharged on 16 July 1993, for twice being not selected for promotion to lieutenant colonel. It also indicates that the applicant’s correct commissioning date is 2 February 1971 and that his correct MRD would have been 1 February 1999, and that these dates can only be corrected on the Reserve Data Management System (RDMS) if his USAR discharge is changed by this Board. On 30 August 2002, the applicant was provided a copy of this advisory opinion in order to have the opportunity to respond. To date, he has failed to reply.

11. 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. Paragraph 7-4b contains guidance on removal for non-selection for promotion. It states, in pertinent part, that officers twice considered and not selected for promotion to lieutenant colonel will be removed.

---

CONCLUSIONS:

1. The Board notes the applicant’s contentions and finds that there is a sufficient equity basis on which to grant partial relief. The record seems to indicate that the applicant’s discharge was automatically effected, without prejudice, as a result of the regulatory provisions requiring the removal of members who were twice not selected for promotion to lieutenant colonel. These provisions mandate discharge unless a member is eligible for and requests transfer to the Retired Reserve within 30 days of being advised of his options.

2. The evidence of record fails to show that ARPERSCOM personnel officials properly notified the applicant of his option to transfer to the Retired Reserve in connection with his mandated separation from the USAR. In addition, there is no evidence to indicate that the applicant voluntarily elected to be discharged as opposed to being transferred to the Retired Reserve at that time. Thus, the Board has no reason to question the applicant’s assertion that he had no contact with ARPERSCOM personnel officials prior to his being discharged from the USAR, which would include his being notified of his options in connection with the removal action.

3. Given the facts and circumstances of this case, the Board finds sufficient reason to believe the applicant was never properly counseled and afforded the opportunity to choose between discharge or transfer to the Retired Reserve. As a result, the Board concludes that it would be appropriate, in the interest of equity, to void the applicant’s USAR discharge of 26 March 1993, and to show that he was instead transferred to the Retired Reserve on that date.

4. However, the Board finds no evidence that would support the applicant’s contention that his transfer to the Retired Reserve should not be effective until his later MRD. The available evidence in this case shows that the applicant earned a total of 106 membership points in the seven year period between 1985 and 1992, which indicates that his participation in the IRR was minimal. Therefore, the Board finds no propriety or equity evidentiary basis that would warrant adjusting the date he was transferred to the Retired Reserve beyond his current discharge date.

5. In addition, the Board concludes that once the applicant’s USAR discharge is voided, it would be appropriate for ARPERSCOM personnel officials to correct their RDMS to reflect the correct date the applicant was commissioned a 2LT in the USAR, and the resultant MRD as indicated in their advisory opinion.

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

---

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by voiding the 26 March 1993 discharge from the USAR pertaining to the individual concerned, and by showing that he was instead transferred to the Retired Reserve on that same date; and by correcting his record to reflect the correct date he was commissioned a 2LT and the correct MRD.

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

BOARD VOTE:

__INW__ __WTM__ __CG __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Irene N. Wheelwright___
                  CHAIRPERSON

---

INDEX

CASE ID	AR2002074840
SUFFIX
RECON
DATE BOARDED	2002/10/03
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1993/03/26
DISCHARGE AUTHORITY	AR 135-175
DISCHARGE REASON	Promotion non-selection twice
BOARD DECISION	GRANT PARTIAL
REVIEW AUTHORITY
ISSUES 1. 333	135.0100
2.
3.
4.
5.
6.