RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            8 January 2004
      DOCKET NUMBER:   AR2003089538


      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. Edmund P. Mercanti            |     |Analyst              |


  The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Ms. Linda M. Baker                |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge from the Active Guard and
Reserve (AGR) be corrected to transfer to the Retired Reserve.

2.  The applicant states that since he had over 20 qualifying years of
service at the time of his separation, he should have been transferred to
the Retired Reserve.

3.  The applicant provides extracts from his military records which show
that he had over 20 qualifying years of service at the time of his
separation from the AGR program.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of injustice which occurred on
28 April 1997.  The application submitted in this case is dated 7 April
2003.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant entered active duty in the AGR program (Army Reservist
ordered to extended active duty in their status as a reservist) on 15
January 1983.  He had 2 years, 11 months and 16 days of prior active
service, and 13 years and 1 day of prior inactive (Army Reserve not on
active duty) service.

4.  On 29 April 1991, the applicant reenlisted for 6 years.

5.  On 31 August 1991, the applicant, then serving on active duty in pay
grade
E-8, was issued a “20-year letter” certifying his eligibility for retired
pay at age 60.

6.  On 17 April 1995, the applicant was notified that he had been selected
for a Department of the Army bar to reenlistment for the AGR program.  The
applicant unsuccessfully appealed that bar.

7.  The applicant was honorably discharged at the expiration of his term of
service (ETS) on 28 April 1997.  He had 14 years, 3 months and 14 days of
active service during that period.

8.  Army Regulation 635-200, Active Duty Enlisted Administrative
Separations, does not provide for the transfer of a soldier on active duty
to the Retired Reserve.

9.  Army Regulation 140-10, Assignments, Attachments, Details, and
Transfers, provides for the transfer of reservists to the Retired Reserve
who have over 20 years of qualifying service.  However, the applicability
paragraph of this regulation specifically states that this regulation does
not apply to soldiers on active duty.  Paragraph 6-1 of this regulation
states that soldiers eligible for transfer to the Retired Reserve must
request such transfer.

10.  Army Regulation 140-111, The Army Reserve Reenlistment Program,
paragraph 1-5, states that the Secretary of the Army determines the
qualifications for immediate reenlistment in the USAR.

11.  In the processing of this case, an advisory opinion was obtained from
the
US Army Reserve Personnel Command (AR-PERSCOM).  The AR-PERSCOM stated that
while the applicant could have requested transfer to the Retired Reserve,
he did not.  Since law requires a written request to be transferred to the
Retired Reserve, he could not have been placed in that control group.  The
AR-PERSCOM explains that in order to transfer the applicant to the Retired
Reserve, he would have had to be transferred to the Army Reserve Control
Group (Reinforcement) for one day and transferred from that control group
to the Retired Reserve.  The applicant was provided a copy of this advisory
opinion and given the opportunity to respond.  He did not respond.

DISCUSSION AND CONCLUSIONS:

1.  Since the applicant had over 20 qualifying years of service, he should
have been given the opportunity to elect to be transferred to the Army
Reserve Control Group (Reinforcement) and, from there, to the Retired
Reserve.  There is no indication that the applicant was informed of that
option or, therefore, given the opportunity to exercise that option.

2.  Since the applicant served on active duty until his ETS, his enlistment
must be extended if his records are to be corrected to show that he was
transferred to the USAR Control Group (Reinforcement) and from there to the
Retired Reserve.
BOARD VOTE:

___kan__  ___lmb__  ____jtm _  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by showing:

      a.  that he extended his 29 April 1991 USAR reenlistment on 27 April
1997 for 30 days by reason of Secretarial Authority, in this case only as
an exception to policy;

      b.  that he was released from active duty and transferred to the USAR
Control Group (Reinforcement) on 28 April 1997;

      c.  that his DD Form 214 for the period ending 28 April 1997 be
corrected to show that he was transferred to the USAR Control Group
(Reinforcement) and not discharged; and

      d.  that he was transferred to the USAR Control Group (Reinforcement)
to the Retired Reserve on 30 April 1997.




            _________Kathleen A. Newman______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003089538                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |135.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |