RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            21 December 2004
      DOCKET NUMBER:   AR2004104104


      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. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Ms. Semma E. Salter               |     |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, in effect, that his discharge from the United
States Army Reserve (USAR) be voided and that he be transferred to the
Retired Reserve in lieu of being discharged.

2.  The applicant states, in effect, that he was discharged from the USAR
after receiving his Notification of Eligibility for Retired Pay at Age 60
(20 Year Letter).  He claims he should have been placed in the Retired
Reserve and has been advised to make this change by officials from the
Human Resource Command (HRC), St. Louis, Missouri.

3.  The applicant provides his 20 Year Letter, Chronological Statement of
Retirement Points (ARPC Form 249-2-E), USAR Discharge Orders and
Resignation Packet in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 19 December 1988.  The application submitted in this case
is dated 16 February 2004.

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’s record shows he served in various capacities in the
USAR from 18 March 1967 through 19 December 1988.  His ARPC Form 249-2-E
shows he earned 1706 creditable points and a total of 20 qualifying years
for retirement.  On 24 May 1988, the United States Army Reserve Personnel
Center (ARPERCEN) published a 20 Year Letter notifying the applicant he had
completed the required years of service necessary to qualify for retired
pay at age 60.

4.  On 26 June 1988, while serving as a lieutenant colonel and assigned to
the 828th Station Hospital, Fresno, California, the applicant tendered his
resignation based on his having completed the 20 years of qualifying
service necessary for retirement.  In his resignation request, he stated
that he understood that if his resignation was accepted, he was entitled to
an honorable separation and would be furnished an honorable discharge
certificate.

5.  On 19 December 1988, Headquarters, Sixth United States Army and
Presidio of San Francisco, Presidio of San Francisco, California, published
Orders Number 118-054, directing the applicant’s honorable discharge from
the USAR on 19 December 1988.

6.  Army Regulation 140-10 (Assignments, Attachments, Details, and
Transfers) prescribes policies, responsibilities, and procedures to assign,
attach, detail, remove, or transfer USAR soldiers.  Chapter 7 contains
guidance on removal from active status and paragraph 7-1a indicates that
soldiers removed from active status will be discharged or transferred to
the Retired Reserve upon their request if they are eligible.

7.  An Under Secretary of Defense Memorandum, dated 29 October 1999,
granted former members of the Reserve Components (RC), who are eligible to
receive retired pay at age 60, the entitlement to receive those benefits
authorized by chapter 54 of Title 10 of the United States Code, which are
normally associated with being in the Retired Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that his USAR discharge be voided and that he
be transferred to the Retired Reserve was carefully considered.  However,
the evidence of record confirms he was discharged from the USAR in
accordance with applicable regulations based on his having voluntarily
tendered his resignation.  There is no evidence to suggest he was denied
the option of transferring to the Retired Reserve at the time.

2.  The applicant is advised that membership in the Retired Reserve is not
required for him to receive retired pay at age 60 and even though
discharged, he remains eligible to apply for retired pay.  Further, a 29
October 1999 Under Secretary of Defense Memorandum authorized former
members of the RC, who are retirement eligible, entitlement to benefits
authorized by chapter 54 of
Title 10 of the Untied States Code.  A copy of this memorandum is enclosed
for the applicant’s information regarding the scope of his benefit
entitlement.

3.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 December 1988.  Thus, the time for
him to file a request for correction of any error or injustice expired on
18 December 1991.  However, he failed to 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 his failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___FE___  __SES__  __PMS__  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.




            ____Fred Eichorn_______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004104104                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/12/21                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1988/12/19                              |
|DISCHARGE AUTHORITY     |AR 135-175                              |
|DISCHARGE REASON        |Retirement Eligible                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  338  |136.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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