MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 November 2002
         DOCKET NUMBER: AR2002075114

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Roger W. Able		Member
Mr. Hubert O. Fry		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 he be granted service points for the time he spent in the United States Army Reserve (USAR) Control Group (Individual Ready Reserve (IRR)) and that he be placed in the Retired Reserve effective 6 December 1994, when he left the active Reserve.

APPLICANT STATES: In effect, that after being released from active duty (REFRAD), he was placed in the IRR, where he remained until he was honorably discharged from the USAR. He subsequently enlisted in the USAR and served for 20 years, until he made a personal decision that he could not sufficiently balance his obligations to his family, his civilian job and the Army. He goes on to state that he submitted a request for transfer to the Retired Reserve, with the intent of staying there until he was needed by his country until age 60 and at the same time accumulate the retirement points and pay increases that would occur over time. However, he has since discovered that he was discharged instead. He also discovered that he did not receive any retirement points credit for the time he spent in the USAR Control Group (IRR) after his REFRAD from active duty. He further states that in 1996, when he received his discharge orders, he thought the orders to be a mistake and disregarded them. He has recently discovered that it was not a mistake and that he is not entitled to membership points and pay increases since his discharge.

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

He was born on 4 November 1942 and enlisted on 12 May 1964, for a period of 3 years and training as an engineer construction equipment operator. He continued to serve until he was honorably REFRAD in the pay grade of E-5 on 24 April 1967. He had served 2 years, 11 months and 13 days of total active service and was transferred to the USAR Control Group (Reinforcement) to complete his statutory service obligation. He was honorably discharged from the USAR on 30 April 1970.

On 6 December 1974, he enlisted in the USAR and remained in the USAR through a series of continuous reenlistments. He was promoted to the pay grade of E-7 on 8 November 1989.

On 12 June 1992, the Army Reserve Personnel Center (ARPERCEN) notified the applicant (20-year letter) that he had completed the required years of service to be eligible for Retired pay at age 60 (4 November 2002). He was also informed that he had 90 calendar days in which to submit his Survivor Benefit Plan Election Certificate (DD Form 1883) or he would not be allowed to enroll until he applied for Retired pay at age 60. The applicant submitted his DD Form 1883 on 29 January 1993.

Although there is no actual request in the available records, his records show that he was transferred to the USAR Control Group (Reinforcement) on 6 December 1994, where he remained until he was honorably discharged from the USAR on 18 July 1996.

The applicant submitted his request for Retired Pay at age 60 on 1 May 2002.

In the processing of this case, officials at the Total Army Reserve Personnel Command (ARPERSCOM) provided information regarding the applicant’s case and indicated that 30 additional membership/retirement points would be added to his records in conjunction with his 1 May 2002 retirement application. Officials at the ARPERSCOM also indicated that there was no evidence that the applicant had ever requested transfer to the Retired Reserve and that he was discharged in 1996 due to his failure to earn qualifying years of service and to respond to correspondence from the ARPERSCOM concerning that matter.

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 135-178, 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.

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

1. In the absence of evidence to the contrary, it must be presumed that the applicant’s honorable discharge from the USAR was accomplished in accordance with law and regulations applicable at the time.

2. The applicant’s contentions have been noted by the Board; however, they are not supported by the evidence submitted with his application or the evidence of record. The applicant’s discharge orders were published in July 1996, approximately 2 years after he claims he requested transfer to the Retired Reserve.

3. The Board also notes that the ARPERSCOM indicates that he failed to respond to inquiries regarding his non-participation/failure to attain qualifying years of service and further notes that the address to which his discharge was mailed is the same address he uses in his application to the Board.

4. Additionally, the Board notes that at the time he received his 20-year letter, he was informed that he had 90 calendar days in which to complete his DD Form 1883 and he did not do so until 6 months later.

5. The Board has noted the applicant’s contention that he did not receive membership credit for the time he spent in the USAR after his REFRAD from active duty. The ARPERSCOM has acknowledged that he will be given credit for that time; therefore there is no basis for the Board to further consider that issue.

6. While the applicant asserts that it was his desire to be transferred to the Retired Reserve, he has provided no evidence with his application nor is there any evidence in the available records to support that contention. Therefore, in the absence of evidence to the contrary, the Board finds no basis to place him in the Retired Reserve retroactively.

7. 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.

8. 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

___sac__ _hof ____ ___ra ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075114
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/11/26
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1996/07/18
DISCHARGE AUTHORITY	AR135-178
DISCHARGE REASON	FAIL TO PARTICIPATE
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 335	135.0300/RET RES
2.
3.
4.
5.
6.