RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  27 October 2005
	DOCKET NUMBER:  AR20050001874 


	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. Joyce A. Wright

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 reversal of his involuntary transfer to the Retired Reserve and reinstatement to an active status in the U. S. Army Reserve (USAR) with assignment to a troop program unit (TPU) or Individual Ready Reserve (IRR).

2.  The applicant states that he was involuntarily transferred to the Retired Reserve without prior notification or his consent.  He states that the Army Human Resources Command (AHRC)-St. Louis failed to adequately utilize all forms of communication (e.g. 2Xcitizen, AKO [Army Knowledge on Line] email) at their disposal to inform him of a pending personnel action and, without his consent or his knowledge, executed an inappropriate transfer. 

3.  The applicant provides a copy of a self prepared executive summary in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was appointed as a Reserve commissioned officer in the rank of second lieutenant (2LT/0-1) on 10 May 1980, with prior enlisted service, at the age of 27.  His date of birth is 14 July 1952.  The automated personnel data system shows his mandatory retirement date (MRD) as 10 May 2008.  He was promoted to lieutenant colonel (LTC/0-5) effective 30 June 1999.

2.  On 1 July 1999, the Army Reserve Personnel Command (ARPERCOM) notified the applicant that he had completed the required years of service to be eligible for retired pay on application at age 60 (20-Year Letter).

3.  The applicant was considered and not selected for promotion to colonel by the 2003 and 2004 Reserve Components Selection Boards (RCSB).  

4.  The applicant was sent a memorandum, from AHRC-St. Louis, dated 10 August 2004, Subject: Nonparticipation in the USAR, with a suspense date of 14 September 2004 to "Shote Galica #117, Vushtrri, Kosovo via Vienna 34219, Yugoslavia, which was his address at that time.  The memorandum warned him of his nonparticipation in the USAR, that he must earn 50 retirement points per year or be discharged or transferred to the Retired Reserve and that he could apply for a one-time waiver. However, no response was received.  He was also provided a ARPC FL Form 3948 (Election of Options), as an attachment, at that time, giving him an option to elect transfer to the Retired Reserve, request a waiver, or be discharged. 
5.  On 23 September 2004, orders were published releasing the applicant from the USAR Control Group (IMA) with assignment to the Retired Reserve effective 30 September 2004, due to non-participation.  

6.  The applicant's Summary of Retirement Points shows that he had completed over 26 years of qualifying service for retirement purposes.  It also shows that he had accrued less than 50 points in his last 2 years in the USAR.

7.  In the self-prepared summary, the applicant states that, in September 2003, he submitted a USAR Component (USARC) Form 1058 to his IMA (Individual Mobilization Augmentation) Coordinator at Camp Shelby, Mississippi, requesting annual training (AT) for a 29 day period to begin mid-November and end mid-December 2003.  At the time of his submission, he was serving as the Deputy Program Manger for the U.S. Department of Justice/International Criminal Investigations Training Assistance Program in Vushtrri, Kosovo (Balkans).  Due to his geographical location, he was able to access his 2Xcitizen home page or AKO email account only intermittently or not at all.  However, he maintained email contact with his IMA coordinator and frequently queried him as to the status of his orders.  His coordinator continued to inform him they were not published.

8.  He states that on or about 25 November 2003, he gained access to his 2Xcitizen Soldier page and discovered his orders had been published; however, due to the fact that he found them approximately five (or more) days into his AT period, he requested that the IMA coordinator have them cancelled.   On or about May 2004, he again submitted his request for AT over 60 days prior to his beginning date to ensure adequate time for publications.  However, orders were never published.  On or about 29 September 2004, he was informed by AHRC-St. Louis that he had been transferred to the Retired Reserve due to lack of participation.  

9.  On 8 October 2004, he replied to AHRC-St. Louis advising of his attempts to request orders for AT, of his geographical location and of the serious doubts that he would ever receive any documents AHRC-St. Louis would send to his physical "Kosovo" address, of that fact that there were no Scheduled Airlines Travel Offices (SATO) in Kosovo and that he had to rely on the SATO in Germany for airlines tickets, and that he had been having problems with his AKO mail and 2Xcitizen Soldier portal pages resulting in him being unable to download his AT orders.  



10.  On 18 October 2004, AHRC replied indicating that he would have to apply to this Board for relief.   As of 9 January 2005, he had still not received the Memorandum of Personnel Action from AHRC-St. Louis regarding a pending personnel action and informing him of his options regarding transfer or waiver.  He had 3 years remaining till his MRD.  

11.  In the processing of this case a staff advisory opinion was provided by a Human Resource Specialist, Transition and Separations Branch, AHRC-St. Louis.  The opinion stated that the applicant was transferred to the Retired Reserve effective 30 September 2004 for failure to maintain an active status after completing 20 years of qualifying service for retired pay purposes.  Title 10, United States Code (USC), Section 12642, required that a Soldier must maintain an active status by accumulating 50 or more points each retirement year after qualifying for retired pay.  Notification was sent to the applicant at "Shote Galica #117, Vushtrri, Kosovo" via Vienna, Yugoslavia, which was the address on file at that time.  Retired Reserve orders were also sent to that address.  The opinion concluded that Retired Reserve order were issued in accordance with the law and should not be revoked or rescinded. 

12.  The applicant was provided a copy of this opinion for possible comment prior to consideration of this case but no response was received.

13.  Army Regulation 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an 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.  

14.  Chapter 6 of the regulation covers transfer to and from the Retired Reserve.
Paragraph 6-3 of Army Regulation 140-10 pertains to ordering Retired Reserve members to active duty (AD).  It states that Retired Reserve members will be ordered to AD in their retired status if ineligible for transfer to an active status or placed in an active status if eligible and ordered to AD.

15.  Paragraph 7-12, of the regulation states that there are exceptions to specific reasons for removal from an active status.  Failure to earn the required 50 retirement points may be authorized by the area commander (for Soldiers assigned to a TPU) or by the Commander, AR-PERSCOM.  USAR Soldiers must request a waiver and submit documentation to show that nonparticipation was 
due to circumstances beyond their control.  Such circumstances are defined as those of a personal or temporary nature such as illness or civilian employment.  A waiver of nonparticipation may be granted only on a one-time basis for failure to earn the required 50 points during a retirement year.
16.  Sections 12731 through 12739 of Title 10, United States (US) Code, authorize retired pay for Reserve Component military service.  Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve Soldier earned 50 retirement points or more. 

17.  Section 12642, of Title 10 US Code, states that to be retained in an active status, a Reserve commissioned officer, must in any applicable yearly period, attain the number of points under Section 12732 and must conform to such other standards and qualification as the Secretary concerned may prescribe.  

18.  The term “good years” is an unofficial term used to mean years in which     50 or more retirement points are earned during each year, and which count as qualifying years of service for retirement benefits at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was appointed in the USAR on 10 May 1980, with prior enlisted service, and was considered and not selected for promotion to colonel by the 2003 and 2004 RCSBs.  

2.  The applicant was properly removed from an active status and was transferred to the Retired Reserve, due to his non-participation, in accordance with regulation.  

3.  The applicant alleges that he was involuntarily transferred to the Retired Reserve without prior notification or his consent, that AHRC-St. Louis failed to adequately utilize all forms of communication at their disposal to inform him of a pending personnel action, and without his consent or his knowledge, executed an inappropriate transfer.  

4.  The evidence shows that the applicant was sent a nonparticipation memorandum on 10 August 2004 at his current overseas address, with a suspense date of 14 September 2004.  The memorandum warned him of his nonparticipation in the USAR, that he must earn 50 retirement points per year or be discharged or transferred to the Retired Reserve and that he could apply for a waiver.  However, no response was received and the applicant was properly placed in the Retired Reserve due to his years of service.




5.  The applicant alleges that he submitted a USARC Form 1058 to his IMA Coordinator for AT for a 29 day period to begin mid-November and end December 2003.  However, due to his geographical locations, he was able to access his 2Xcitizen Home Page or AKO email account only intermittently or not at all.  He continued to maintain email contact with his IMA coordinator and frequently queried him as to the status of his orders and he continued to inform him they were not published.

6.  The applicant gained access to his 2Xcitizen Soldier page and discovered that orders had been published; however, he discovered that they had been published five or more days into his AT.  He requested that they be cancelled and submitted another request for AT over 60 days prior to his beginning date.  However, orders were never published and he was informed that he had been transferred to the Retired Reserve due to lack of participation.

7.  There is no evidence, and the applicant has provided none, to show that such requests for AT was ever submitted.  

8.  The applicant's strong desire to be reinstated has been considered; however, he was removed from an active status by operation of law.   However, in accordance with regulation, Retired Reserve members would be ordered to AD in their retired status if ineligible for transfer to an active status or placed in active status if eligible and ordered to AD.  

9.  At this time, there has been no directive issued by the President of the United States to recall or order the applicant to active duty.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_ALR____  __MM___  ___LDS_  DENY APPLICATION







BOARD DETERMINATION/RECOMMENDATION:

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.




___Melvin H. Meyer______
          CHAIRPERSON




INDEX

CASE ID
AR20050001874
SUFFIX

RECON

DATE BOARDED
20051027
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20030930
DISCHARGE AUTHORITY
AR 140-10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
135
2.

3.

4.

5.

6.