PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 3 April 2003
         DOCKET NUMBER: AR2002082034


         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:

Mr. Samuel A. Crumpler		Chairperson
Mr. Roger W. Able		Member
Mr. Patrick H. McGann		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, in effect, that his discharge from the United States Army Reserve (USAR) be voided and that he be transferred to the USAR Retired Reserve.

3. The applicant states, in effect, that he believes his discharge from the USAR was unjust for the following reasons: he responded to the option letter provided him prior to the effective date of his discharge; his intent to enter the Retired Reserve was clearly established in his response to this option letter; he was not given proper notice that his untimely response would cause him to be automatically discharged; and he was not given adequate notice as to how to timely respond to the option letter to avoid being automatically discharged. In support of his application, he provides the enclosed self-authored statement with the following documents: twenty-year letter; notes of communications with ARPERSCOM officials; ARPERSCOM nonparticipation letter with attached option letter; envelope in which the option letter was sent with post mark; USAR discharge orders; Freedom of Information Act (FOIA) requests with return receipts; communications with ARPERSCOM pertaining to FOIA requests; and standard operating procedure for separation for non-participation after twenty year letter.

4. The applicant’s military records show that he was notified that he had completed the required years of qualifying service and was eligible to receive retired pay in a memorandum, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 24 November 1999, published by the ARPERSCOM.

5. On 14 November 2000, ARPERSCOM published a letter to the applicant, subject: Nonparticipation in the USAR. In this letter, the applicant was advised that his record indicated that as of his most Retirement Year Ending (RYE), he had not earned the required 50 retirement points. He was further notified that if this information was correct, he should complete the enclosed election of options form by the suspense date indicated, which was 19 December 2000. Finally, it indicated that failure to respond would result in his being discharged.

6. A 19 January 2001 letter to the applicant from the Chief, 99^th Regional Support Team, ARPERSCOM, indicated that the command had not yet received the applicant’s election of options form. It further stated that regulations provided for the administrative discharge of soldiers eligible for transfer to the Retired Reserve if an election of option form is not completed within stipulated time. However, based on years of service in the USAR, his discharge action was being delayed in order to provide him another opportunity to indicate his preference, and he was given 15 days to respond in order to preclude his being administratively discharged.

7. The applicant completed an election of options form and chose to be transferred to the Retired Reserve. The envelope in which this form was mailed contains a post mark of 7 February 2001.

8. On 14 February 2001, Orders Number D-02-108443, issued by ARPERSCOM, directed the applicant’s honorable discharge from the USAR, effective 13 February 2001.

9. In connection with the processing of this case, an advisory opinion was obtained from an official of the ARPERSCOM Transition and Separations Branch. It states that the applicant was honorably discharged from the USAR because he did not respond to a notification and option letter after failing to maintain an active status by earning 50 retirement points in a retirement year. It further states that discharge orders were published because the applicant did not request transfer to the Retired Reserve in response to a 14 November 2000 notification letter that contained a suspense date of 19 December 2000. This official opines that the discharge orders published on the applicant were valid based on the applicable law in effect at the time. However, the law has subsequently changed and no longer requires that a transfer to the Retired Reserve be based on the request of the soldier. As a result, it is recommended that the applicant’s discharge orders be voided and he should be allowed to transfer to the Retired Reserve.

10. The applicant was provided a copy of the ARPERSCOM advisory opinion in order to have the opportunity to respond, which he did on 25 February 2003. In his response, the applicant concurred with the portion of the ARPERSCOM opinion that recommended his USAR discharge be voided and he be transferred to the Retired Reserve. However, he took issue with the comments that indicated that he had failed to respond to a notification letter. He states that he clearly responded, although his response may have been untimely. He further asserts that his option election form was provided and his intent to transfer to the Retired Reserve was clearly established to ARPERSCOM officials prior to the date his discharge orders were published.

11. Army Regulation 135-175 (Separation of Officers) prescribes the policies and procedures for the separation of USAR officers. Chapter 4 contains criteria for discharge and paragraph 4-4 provides guidance and the reasons that mandate the removal of a member of the USAR from an active status. It states in pertinent part, that members of the USAR will be removed from an active status for any of 18 listed reasons. It also indicates that removal will be by discharge; however, it does provide the option for eligible members to apply for transfer to the Retired Reserve in lieu of discharge.

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CONCLUSIONS:

1. Lacking evidence to the contrary, the Board presumes that his honorable discharge from the USAR was accomplished in accordance with applicable law and regulation at the time.

2. However, the Board also finds it reasonable to conclude that if he had been properly advised of the regulatory option to request transfer to the Retired Reserve, in lieu of discharge, in a timely manner, he would have responded in a timely manner. Further, the evidence clearly shows that he completed an election of options form requesting transfer to the Retired Reserve prior to the effective date of his discharge, which clearly establishes his intent before the fact. Therefore, the Board finds relief is warranted in this case.

3. In addition, if the applicant’s USAR discharge was based on something other than medical unfitness, his electing transfer to the Retired Reserve would likely subject him to recall while only providing him benefits to which he is already entitled based on his years of qualifying service for retirement. Thus, the Board also finds it reasonable to grant the requested relief as a matter of equity.

4. 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 13 February 2001 discharge from the USAR of the individual concerned; and by showing that he was transferred to the Retired Reserve effective that same date.

BOARD VOTE:

___sac __ ___ra___ ___pm __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Samuel A. Crumpler___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002082034
SUFFIX
RECON
DATE BOARDED	2003/04/03
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2001/02/13
DISCHARGE AUTHORITY
DISCHARGE REASON	NonParticipation
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 338	136.0000
2.
3.
4.
5.
6.