PROCEEDINGS


         IN THE CASE OF
        

         BOARD DATE: 22 January 2004
         DOCKET NUMBER: AR2003084290

         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. Joann H. Langston		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Ronald J. Weaver		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 he be granted one year of Reserve service credit for the period 13 December 1982 through 13 December 1983.

3. The applicant states, in effect, that he was unaware that he was not given service credit for the period between 13 December 1982 and 31 July 1983 and that this period did not count toward retirement until December 2002. He states that in March 1983, he was advised by his local personnel officer that he would have to submit an unqualified resignation in order to leave active duty and keep his commission in order to join the Reserve. He states that it was never his intent to completely sever his association with the Army. He also states that on
1 August 1983, he began drilling with a Troop Program Unit (TPU) of the United States Army Reserve (USAR) under the assumption that he retained his commission and was a member of the USAR in good standing.

4. The applicant further states that in July 1983, he met with the commander of a TPU battalion to discuss becoming a member of that command. He claims that during this period, a soldier leaving active duty had to find his own position in the USAR. The commander accepted him into his unit as a company commander and the battalion administrative section was directed to submit the required paperwork to the Army Reserve Personnel Command (ARPERSCOM) in order to consummate this assignment. The applicant further states that he began drilling with the unit in August 1983 and he continued to drill through April 1984. He also states that he never missed a monthly drill and never received pay. He also claims that when he signed in for each drill, he questioned the chain of command about his status and he was simply told that it took a long time to get orders in the Reserve. He states that the only reason he stopped drilling was that the unit departed for active duty training in the summer of 1984.

5. In support of his application, the applicant provides two statements from noncommissioned officers (NCO) that confirm that at the time he was released from active duty (REFRAD), the local personnel officer advised the applicant to tender his unqualified resignation, which would allow him to retain his Reserve commission.

6. The applicant’s military records show that he was commissioned a second lieutenant in the USAR and entered active duty in that status on 17 June 1975. He served on active duty for 8 years, 1 month, and 14 days until being honorably discharged on 31 July 1983.

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7. On 16 March 1983, the applicant tendered his unqualified resignation. He stated that the purpose for his resignation was his desire to pursue opportunities as an intelligence analyst in the civilian community. Orders Number 73-1, dated 24 May 1983, authorized the applicant’s discharge on 31 July 1983. The separation document issued to the applicant at the time confirms that he was separated under the provisions of Army Regulation 635-120, for miscellaneous reasons.

8. On 3 February 1984, the applicant submitted a request for assistance to the ARPERSCOM. In this request, he outlined his situation and in effect asked that his discharge be revoked and that he be allowed to retain his Reserve commission and to continue to serve with his TPU, where he had been serving since his REFRAD.

9. A letter from the applicant’s TPU battalion commander, dated 3 March 1984, confirms that the applicant had served honorably as a company commander in his battalion from the date of his REFRAD on 31 July 1983. This battalion commander confirmed that he had recently learned that as a result of an administrative error, the applicant’s Reserve status was terminated upon his discharge from active duty. The battalion commander stated that this was unfortunate for the applicant as well as the Reserve program because he had been an invaluable asset to the unit. The battalion commander requested orders assigning the applicant as a company commander with an effective date of
1 August 1983. The battalion commander enclosed the applicant’s 3 February 1984 request packet with his letter.

10. On 30 March 1984, the Chief, Military Intelligence (MI) Branch, ARPERSCOM responded to the applicant’s request. He informed the applicant that it was the unanimous opinion of officers in a position to evaluate his situation that on the face of the available documentation, the applicant had resigned his commission on 31 July 1983, and he agreed with that assessment. The MI branch chief further stated that while it was clear it was not the applicant’s intent to resign his commission, as evidenced by his joining TPU believing his commission in the USAR was still active, in point of fact his 31 July 1983 discharge was valid. The MI branch chief recommended that the applicant consider pursuing one of two possible actions. The first was to appeal to this Board, and the second was to submit an appointment package through the chain of command requesting reappointment.

11. A Reserve Personnel Accounting System (RPAS) statement on file pertaining to the applicant confirms that between 13 December 1974 and
27 August 1997, he accrued a total of 4081 points and 19 years of creditable service for Reserve retirement purposes.

12. In connection with the processing of this case, an advisory opinion was obtained from human resource (HR) officials of the 88th Regional Support Team, ARPERSCOM. It recommends that the applicant’s 31 July 1983 discharge be revoked and that his records be corrected to show he was transferred to the USAR upon his release from active duty (REFRAD) on that date.

13. The ARPERSCOM advisory opinion also contains a recommendation that the applicant be credited with 1 good year of creditable service for Reserve retirement purposes for the period 13 December 1982 through 12 December 1983. Further, that he receive membership points for the period 13 December 1983 through 12 December 1984 and 13 December 1984 through 13 March 1985. Finally, it states that the applicant should receive all points he accumulated during drills with the TPU he served with between August 1983 and April 1984. On 12 June 2003, the applicant concurred with this advisory opinion.

14. Army Regulation 635-120, in effect at the time, provided the policy for the separation of USAR officers from active duty. It provided provisions for both unqualified resignation for miscellaneous reasons, which resulted in discharge; and for voluntary separation that allowed officers to retain their USAR commission and to continue to serve in the USAR.

CONCLUSIONS:

1. The Board notes the applicant’s contention that he submitted his unqualified resignation based on the advise of a personnel officer at the time and that it was never his intent to sever all ties with the Army. It also notes his claim that he was unaware that his service in a TPU subsequent to his discharge was not counted as creditable service for Reserve retirement purposes, and it finds these contentions have merit.

2. The evidence of record confirms that the applicant was discharged from the Army on 31 July 1983, based on his unqualified resignation request. It also confirms that subsequent to his discharge, he actively drilled with a TPU in good faith between August 1983 and April 1984.

3. In the opinion of the Board, the statements from personnel NCOs provided by the applicant confirm that he submitted his unqualified resignation on the advise of the local personnel officer. Further, as evidenced by his joining a TPU and his active participation in the USAR, the applicant clearly did not believe that his resignation and discharge resulted in his losing his USAR commission.

4. In view of the facts of this case, the Board concurs with the service credit recommendations contained in the ARPERSCOM advisory opinion and it finds that it would be appropriate to correct the applicant’s records accordingly.
5. 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:

a. revoking the 31 July 1983 discharge of the individual concerned and showing that he instead was released from active duty and transferred to the
1st Battalion, 330th Regiment, 1st Brigade, 70th Infantry Division (Training), USAR, Livonia, Michigan on that same date.

b. showing that he retained his commission in the USAR and had no break in service between 1 August 1983 and 13 March 1985, and by crediting him with all points and qualifying service he earned for his TPU service during this period; and

c. crediting him with 1 qualifying year of service for the period
13 December 1982 through 12 December 1983, and granting him membership points for the period 13 December 1984 through 13 March 1985.

2. That once all service credit adjustments have been made, the responsible Army Reserve personnel officials notify the applicant on whether or not he is eligible to receive retired pay at age 60 and if so, of the application procedures required for him to apply for and receive non-regular retired pay.

BOARD VOTE:

_JHL___ __AO__ ___RJW___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Joann H. Langston
                  CHAIRPERSON

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INDEX

CASE ID	AR2003084290
SUFFIX
RECON
DATE BOARDED	2003/10/22
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1983/07/31
DISCHARGE AUTHORITY	AR 635-120
DISCHARGE REASON	Unqualified Resignation
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 303	129.0100
2.
3.
4.
5.
6.