RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            26 February 2004
      DOCKET NUMBER:   AR2003091024


      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. Richard P. Nelson             |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Arthur A. Omartian            |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Ms. Mae M. Bullock                |     |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 14 February 1995 discharge from the
Retired Reserve be revoked, and that as a result of the revocation he be
reinstated to the Retired Reserve.

2.  The applicant states that the discharge order was sent to the wrong
address.  He adds that he never asked to be discharged.

3.  The applicant provides a “20-year letter” certifying his eligibility
for retired pay at age 60; his orders transferring him from a US Army
Reserve (USAR) Troop Program Unit (TPU) to the USAR Control Group
(Reinforcement) effective 15 June 1989; orders dated 14 February 1995 which
discharged him from the USAR Control Group (Reinforcement) effective 9
December 1994; a chronological statement of retirement points which shows
that he earned over 21 ½ years of qualifying service for retired pay; and
his Personnel Qualification Record.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error which occurred on
14 February 1995.  The application submitted in this case is dated12 May
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, a USAR lieutenant colonel assigned to a USAR TPU as a
Command and General Staff (C&GS) instructor, was transferred to the USAR
Control Group (Reinforcement) at his own request effective 15 June 1989.
He did not earn any retirement points while assigned to the USAR Control
Group (Reinforcement) except for membership points.

4.  He was honorably discharged from the USAR Control Group (Reinforcement)
effective 9 December 1994.

5.  Department of Defense Instruction (DODI) 1215.00, paragraph 5.3.3,
Removal from Active Status, mandates that reservists who have qualified for
retirement except for having reached 60 years of age, are required to earn
50 points annually to be retained in the USAR Control Group
(Reinforcement).  A waiver of that requirement on a one-time basis may be
made under exceptional circumstances by the Secretary of the Military
Department concerned.

6.  Army Regulation 140-10, paragraph 6-1, states that soldiers eligible
for transfer to the Retired Reserve must request such transfer.

7.  On 29 October 1999, a memorandum issued by the Under Secretary of
Defense, states that former members of the Reserve Components who are
eligible to receive retired pay at age 60 under 10 US Code, Section 12731,
but who have terminated their Reserve status, are entitled to receive
benefits provided for under Title 10 US Code, Chapter 54.  Identification
cards reflecting the appropriate benefits have been available at Realtime
Automated Personnel Identification System sites since December 1999.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant’s contention, he was discharged from the USAR
Control Group (Reinforcement), not the Retired Reserve.

2.  There is no evidence that the applicant earned 50 retirement points
annually while assigned to the USAR Control Group (Reinforcement).  As
such, he was required to be removed from the USAR Control Group
(Reinforcement) in accordance with DODI 1215.00, paragraph 5.3.3.

3.  Since the applicant never requested to be transferred to the Retired
Reserve, he was required to be discharged when his removal was mandated by
his lack of participation.

4.  The applicant, a lieutenant colonel and a C&GS instructor, would be
expected to know his military status and of the requirement to participate
to remain assigned to the USAR Control Group (Reinforcement).

5.  The fact that the applicant’s orders were mailed to the wrong address
has no bearing on this case.  The applicant didn’t earn retirement points
while assigned to the USAR Control Group (Reinforcement).  As such, he was
required to be removed from the USAR Control Group (Reinforcement).  Since
he didn’t request transfer to the Retired Reserve, he had to be discharged.
 While it is regrettable that the applicant didn’t receive his discharge
orders in a timely manner, it does not alter the appropriateness of the
actions taken.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 February 1995; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 13 February 1998.  However, the applicant did not file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

___aao __  ___jtm __  ____mmb  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            __________Arthur A. Omartian_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003091024                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040226                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |135.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |