RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 October 2005
      DOCKET NUMBER:  AR20050001551


      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             |
|     |Ms. Stephanie Thompkins           |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Allen L. Raub                 |     |Member               |
|     |Ms. Linda D. Simmons              |     |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 correction to his discharge status to show
transfer to the Individual Ready Reserve (IRR) or Retired Reserve.

2.  The applicant states that with 28 years service, 13 active Federal
service and the remaining 15 years of good Reserve status service, does not
warrant a total discharge from the service.  His status should be changed
to the appropriate category of retired or IRR.  Many United States Army
Reserve (USAR) members are still carried on the roles in either an IRR or
Retired Reserve status after completing service.  He believes discharging
him was unjust.  He also states that he was not offered a choice of status
when he was released from active duty (REFRAD).  He was under the belief
that he would be carried in the IRR.  It was not until he volunteered to
support Iraqi Freedom that he discovered he had been discharged.

3.  The applicant provides a memorandum in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 21 November 1997, the date of his REFRAD and discharge from the
USAR/Active Guard Reserve.  The application submitted in this case is dated
3 January 2005.

2.  Title 10, United States 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 military records show that he was appointed in the
South Dakota Army National Guard (SDARNG) as a second lieutenant effective
23 July 1973, with prior enlisted service from 24 May 1969 through 22 July
1973.  He was promoted to first lieutenant effective 22 July 1976.

4.  He was separated from the SDARNG effective 29 March 1982 and
transferred to the USAR Control Group (Reinforcement).  He was promoted to
captain effective 30 March 1982.
5.  He entered on active duty in an Active Guard Reserve status effective
30 November 1986.  He was promoted to major effective 29 March 1989.

6.  On 30 July 1997, he was notified of his involuntary REFRAD based on his
two non-selections for promotion to lieutenant colonel.  The applicant
acknowledged receipt of the notification on 11 August 1997.

7.  His Chronological Statement of Retirement Points, dated 5 August 1997,
shows he was credited with 26 qualifying years of service as of his
retirement year ending date of 23 May 1997.

8.  On 10 September 1997, Headquarters, US Army, Fort Shafter, Hawaii,
published Orders 253-01 discharging the applicant from the USAR/Active
Guard Reserve effective 21 November 1997.  His separation orders do not
show he was transferred to the IRR.  His separation orders also show he had
completed 26 years, 5 months and 28 days of total active Federal service on
that date.

9.  On 14 November 1997, the US Army Reserve Personnel Center, St. Louis,
Missouri, published Orders C-11-701495 releasing the applicant from active
duty effective 21 November 1997 and transferring him to the USAR Control
Group (Reinforcement).

10.  He was subsequently issued a DD Form 214 (Certificate of Release or
Discharge from Active Duty) that shows he was REFRAD effective
21 November 1997 and transferred to the USAR Control Group (Reinforcement).

11.  There is no evidence he was issued a Notification of Eligibility for
Retired Pay at Age 60 (20-year letter).  There is also no evidence of when
and if he was separated from the IRR, or requested transfer to the Retired
Reserve, or requested to be discharged.

12.  Army Regulation 600-8-24, paragraph 2-41, prescribes the policy and
procedures for the discharge of all officers on active duty for 30 days or
more.  This regulation specifies that Reserve commissioned officers serving
on active duty who fail a second time to be selected for promotion will be
processed for involuntary release from active duty on the 120th day after
receipt of involuntary release notification.

13.  Army Regulation 135-180 specifies, in part, that each Reserve
component Soldier who completed the service required to be eligible for
retired pay at age 60 will be notified in writing with a 20-year letter
within 1 year after he/she completed the service.

14.  Army Regulation 140-10 provides, with some exceptions, for separation
of majors for maximum age and/or service and promotion non-selection.  It
specifies that majors may not exceed 28 years of service or age 60.  This
regulation also provides that officers not selected for promotion to
lieutenant colonel are required to be removed from an active status or, if
qualified and if they so request, will be transferred to the Retired
Reserve.

15.  Title 10, United States Code, section 14506, states that an officer in
the grade of major who twice fails to be selected for promotion to
lieutenant colonel will be separated no later than the first day of the
month, after the month in which the officer completes 20 years of
commissioned service.

16.  Title 10, United States Code, section 14513, states that a Reserve
officer of the Army, who is in an active status and whose removal from an
active status or from the Reserve active status list is required by section
14506 of this title shall:  1) be transferred to an inactive status if the
Secretary concerned determines that the officer has skills which may be
required to meet the mobilization needs of the officer's armed forces; 2)
be transferred to the Retired Reserve, if the officer is qualified and
applies for such transfer; or 3) if the officer is not transferred to an
inactive status or the Retired Reserve, be discharged from the officer's
Reserve appointment.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of records shows that the applicant was qualified for
transfer to the Retired Reserve in view of his completion of 26 qualifying
years of service for Reserve retirement.

2.  The available evidence shows the applicant was not selected for
promotion to lieutenant colonel and subsequently removed based on his non-
selections.  He was REFRAD and transferred to the IRR effective 21 November
1997.  His separation orders discharging him from the USAR/Active Guard
Reserve effective 21 November 1997 do not show he was transferred to the
IRR.  There is no evidence in the available records, and the applicant has
provided none, to show that he was issued a 20-year letter.

3.  There is also no evidence in the available records, and the applicant
has provided none, to show that he requested transfer to the Retired
Reserve;

however, had the applicant been given a choice or the opportunity to
request transfer to the Retired Reserve it is likely he would have done so
in a timely manner.

4.  The applicant met the eligibility requirements for assignment to the
Retired Reserve.  It would now be equitable and just to correct his
military records by issuing him a 20-year letter and assigning him to the
Retired Reserve effective 23 November 1997, with entitlement to retired pay
upon his application at age 60.

BOARD VOTE:

_ALR____  _MM____  __LDS__  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 issuing him a 20-year letter and
assigning him to the Retired Reserve effective 23 November 1997, with
entitlement to retired pay upon his application at age 60.




                                  __      Melvin H. Meyer_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001551                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/10/27                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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