RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          31 August 2004
      DOCKET NUMBER:  AR2004100025


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Robert L. Duecaster           |     |Member               |

      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 20 December 1999 discharge from the
United States Army Reserve (USAR) be voided and that he be transferred to
the Retired Reserve.

2.  The applicant states, in effect, that he was discharged from the USAR
in 1999 because he had only 49 points, which was a mistake because he had
51 points, and he had already received his 20-year letter and should have
been transferred to the Retired Reserve instead of being discharged.

3.  The applicant provides a copy of his 20-year letter and a Chronological
Statement of Retirement Points (ARPC Form 249-2-E).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 20 December 1999.  The application submitted in this case is
dated 3 November 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.  He was born on 9 September 1949 and was commissioned as a Navy Ensign
in the Regular Navy (RN) upon graduation from the United States Naval
Academy on 9 May 1971.  He continued to serve in the Regular Navy until
25 November 1973, when he resigned his RN commission to accept a United
States Naval Reserve (USNR) commission as a medical corps officer and
attend medical school under a Navy Scholarship Program (the Medical and
Osteopathic Student Scholarship Program).

4.  He completed his training and remained on active duty until he again
resigned his RN commission on 1 December 1987.  He had served 16 years, 5
months and 23 days of total active service and was honorably discharged in
the pay grade of O-5 (commander).

5.  On 9 July 1993, he accepted a USAR commission as a medical corps major
and was subsequently promoted to the rank of lieutenant colonel.

6.  On 10 December 1998 the Army Reserve Personnel Command (ARPERSCOM), now
known as Human Resources Command – St Louis    (HRC-SL), notified the
applicant (20-year letter) that he had completed the required years of
service to be eligible for Retired pay at age 60 (9 September 2009).

7.  On 16 December 1999, the ARPERSCOM published orders discharging him
from the USAR effective 20 December 1999.

8.  In the processing of this case a staff advisory opinion was obtained
from the HRC-SL Transfer and Reassignment Branch, which opined, in effect,
that the applicant was discharged from the USAR due to his earning only 49
points for the Retirement Year Ending (RYE) July 1999, which was not enough
points to qualify for a valid RYE.  A notification letter with an election
of options was sent to the applicant's address in Florida, which was the
most current address on file and no response was received.  Accordingly,
discharge orders were published. Officials at the HRC-SL opined that the
Board should grant authority to revoke the discharge orders and allow the
applicant to be transferred to the Retired Reserve. The opinion was
provided to the applicant who in turn concurred with it.

9.  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.

10.  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 AND CONCLUSIONS:

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

2.  However, it appears that he did not receive the notification and
election of options which afforded him the opportunity to be transferred to
the Retired Reserve.  It is also reasonable to presume that given his
qualifying years of creditable service for Retired pay purposes, had he
been afforded the opportunity prior to discharge, he would have elected to
be transferred to the Retired Reserve.

3.  Inasmuch as the applicant meets eligibility requirements for assignment
to the Retired Reserve, it would be equitable and just to correct his
military records by voiding his discharge of 20 December 1999 and assigning
him to the Retired Reserve, effective the same date.

4.  In view of the foregoing, the applicant’s records should be corrected
as recommended below.

BOARD VOTE:

__jns___  __jrs___  __rld___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL 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 voiding the 20 December 1999 discharge
from the USAR of the individual concerned; and by showing that he was
transferred to the Retired Reserve effective 20 December 1999.

                 John N. Slone
            ______________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100025                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040831                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |19991220                                |
|DISCHARGE AUTHORITY     |AR135-178 . . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(GRANT)                                 |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |333/trans ret res                       |
|1.135.0100              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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