RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 August 2006
      DOCKET NUMBER:  AR20050004721


      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:

|     |Ms. Jeanette R. McCants           |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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, correction of his reassignment
orders, dated 26 June 2001, to show the entry "involuntary reassignment"
instead of the entry "voluntary reassignment."

2.  The applicant states, in effect, that it has been more than 3 years
since this error or injustice has taken place and that there are several
dates of interest that are relevant to his application.  The applicant
states that he is currently employed as a civilian with the status of
military technician (MT) [no longer employed as an MT effective 15 April
2006] for which he needs to maintain a Selective Reserve (SELRES) status or
be retired involuntarily or medically.  He states that one of the reasons
he never applied to have his orders corrected previously was that when he
spoke to his facility supervisor, at that time, he directed him to go back
to work.

3.  The applicant states, in effect, that another reason was, "with those
in certain positions I felt I would be fighting a losing battle."  He had a
family with five children to support which he felt was important.  After
working for 28 plus years and having an outstanding civilian career with
many outstanding evaluations and many accolades, he now found himself in
the position of losing his full retirement benefits, with medical, as he is
under the CSRS (Civil Service Retirement System) not FERS (Federal
Employment Retirement System).

4.  The applicant states that after receipt of the memorandum identifying
Military Technicians not having an assignment in the Selected Reserve to
ASF (Aviation Support Facility), in Houston, Texas, he enlisted the aid of
a Member of Congress (MOC) to prepare a Congressional Investigation into
his military records.  He later received an answer and was informed of the
findings.  He discovered that his DA 4651-R (Request for Reserve Component
Assignment or Attachment) had been altered with write ins and cross outs of
which he indeed did not do, as he had signed a clean copy and prepared two
originals, one of which he held in his possession.  It was not military
policy that documents as such should have been sent back for correction and
not have been in his records.  However, had that been the case, he would
have never signed it as he knew he could never ''volunteer" to retire as it
would mean the end of his civilian employment.  He later spoke to someone
at the MOC's office who told him they could be of no further assistance to
him and was informed to contact another MOC.



5.  The MOC enlisted the aid of two other MOCs both working in conjunction
with one another to assist him in this matter to obtain answers to his
dilemma.  Through the MOC's liaison, he received an answer from the Deputy
Assistant Secretary (Human Resources), at the Pentagon, which did not
really help him.    A follow-up letter was prepared and sent to the Deputy
Assistant Secretary, Human Resources, and later to the Army Human Resources
Command (AHRC)-St. Louis.  He received their answer from the US Army
Director, Western Region. Their answer was to apply to this Board for
relief.  It was his belief that no one really knew what to do about his
situation as there was a problem in two areas of which he, on his own,
tried to correct by phone.  He tried this avenue as his facility supervisor
at work asked him if he knew of any way, he could resolve his situation;
so, he gave it a shot and got nowhere.

6.  The applicant states that two original DA Forms 4651-R were signed on
6 April 2001, by him and his commander.  He retained one original and the
other copy was sent forward.  His purpose for signing two originals was at
the time he felt something might transpire as two individuals from Group
and Brigade had been giving the unit (352nd) and himself grief over another
situation (his enlistment papers) for some time since the beginning of
November / December 2000.  They believed something was fraudulent about
them.  At the time, his reasoning in signing the DA Form 4651-R was to
complete his contractual obligation which was stated on the form and his
intention was not to retire, as he never volunteered to do so.  Whoever
wrote or was directed to publish his orders volunteered him to retire.  His
intention was to continue his enlistment and find a new duty station and
also to clear his head of the harassment, as he knew he would be able to
find another assignment.

7.  At the time, he knew of an opening with the 7th/6th Cavalry Regiment in
Conroe, Texas, which is still there.  Shortly, after signing the DA Form
4651-R, he was directed and went for his 5-year periodic physical on 19 May
2001.  On his evaluation documents, which should be in his medical files,
the doctor states that he should be boarded out.  This being so by Army
standards, he is a medically unfit Soldier and he could and should appear
before a MOS (Military Occupational Specialty) Medical Review Board (MMRB).
 Even though he was medically unfit by Army standards and had a permanent
profile, he believes there are letters located in his records from three
commanders who wanted to see him retained.  Upon receiving this evaluation,
he immediately went to his unit (352nd) on 21 May 2001 and had a conference
call with persons from Group and Brigade.


8.  The applicant verbally requested that they "stop all and any actions"
pertaining to his transfer to the Individual Ready Reserve (IRR) and that
he would send a written request to back up his verbal request.  His reason
was that he should appear before the MMRB to be medically retired instead
of being transferred to the IRR.  Their direct order to him and the unit
administrator (UA)
was, "no", not to send any documentation, 201 File (Military Personnel
Records
Jacket [MPRJ]) or medical file forward; he was to be retired anyway.  He
also states that others present during the conference call were his wife
and another Soldier.

9.  The applicant also knew for a fact, as of July 2001, when the troops
departed for annual training (AT) that this 201 File (MPRJ), medical files,
and other pertinent documentation were still at the unit (352nd) in Yoakum,
Texas.  He asks that the timeline be reviewed as to how quickly his orders
were processed and without the appropriate files.  He knows for certain
they could have been stopped with a phone call and the appropriate papers
then sent forward.

10.  The applicant states, in effect, in conclusion that there are two
dilemmas, his medical evaluation and his so called voluntary retirement,
that are of issue.  If it is necessary to bring him back into the Selected
Reserve, he has no qualms with it and feels that he is still enlisted to
serve and protect his country.  He concludes that this Board is his last
venue before seeking legal advice and submitting his case to the Federal
Court System.

11.  The applicant provides a copy of a DA Form 4651-R, with attachment; a
copy of a DA Form 3349 (Physical Profile); a copy of Standard Form 88
(Report of Medical Examination), with attached documents; a copy of a
personal call log; a copy of separation orders; and several additional
documents; in support of his application. He subsequently through a Member
of Congress (MOC) provided additional documentation after submission of his
request in the form of the MT Handbook.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 27 July 2001, the date of his transfer to the Retired
Reserve.  The application submitted in this case is dated 23 March 2005.




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 limitations 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 he enlisted in the Regular Army
(RA) on 24 June 1971, as a helicopter repairman (67N), for 3 years, with an
established expiration of term of service (ETS) of 23 June 1974.  His date
of birth (DOB) is 27 July 1951.  He was promoted to specialist four (SP4/E-
4) on 12 June 1973.  He continued to serve until he was honorably released
from active duty on
6 March 1974.  He was transferred to a troop program unit (TPU), of the
U.S. Army Reserve (USAR).  He continued to serve until he was honorably
discharged on 11 March 1977.

4.  He reenlisted in the USAR on 12 March 1977.  He continued to serve
through a series of continuous reenlistments.  He was promoted to master
sergeant (MSG/E-8), with an effective date and date of rank (DOR) of
29 July 1994.  He was appointed as a first sergeant (1SG) effective
12 January 1996.

5.  The applicant provides a copy of his latest enlistment contract which
shows that he enlisted in the USAR on 16 July 1999, for 6 years, with an
ETS of 15 July 2005.  He was assigned to a TPU, the 352nd Engineer Company,
Yoakum, Texas, at the time of his reenlistment.

6.  The applicant provides a copy of a DA Form 4651-R, dated 6 April 2001,
which shows that he requested reassignment to the IRR under the provisions
of Army Regulation 140-10, chapter 4.  He also provides a copy of the same
form, same date, which shows the entry, "Retired Res [Reserve]," which was
handwritten, in item 5 (Request Assignment/Attachment/Transfer).

7.  On 19 May 2001, he was issued a permanent profile (DA Form 3349/
Physical Profile) of 333311 due to calcific tendonitis, osteoarthritis both
knees; s/p prostate surgery; and hearing loss.  His profile indicated
assignment limitations of no running or PT (physical training) and no APFT
(Army Physical Fitness Test).



8.  On 19 May 2001, the applicant was administered a 5-year periodic
physical examination.  The physician indicated in item 42 (Notes) of SF 88
that he had “multiple clinical problems and deserves to be boarded out.”
This examination failed to show that he was qualified or not qualified for
retention.  The Physical Profile was 333311, Physical Category C.

9.  On 26 June 2001, orders 01-177-006 were published by HQs, US Army,
90th RSC (Regional Support Command), releasing the applicant from his TPU,
with voluntary reassignment to the Retired Reserve, effective 27 July 2001,
in the rank of 1SG.

10.  On 20 July 2004, the Deputy for Aviation Management and Support, 244th
Aviation Brigade, Fort Sheridan, Illinois, prepared a memorandum; Subject:
Military Technician with no Selected Reserve (SELRES) Assignment.  The
memorandum identified individuals as MTs not having an assignment in the
SELRES, and the applicant was one of them.  MTs hired on or after
1 September 1970, are required to maintain membership in the SELRES, as
required by Department of Defense Directive (DODD) 1205.18.  MTs employed
in support activities need only be members in the SELRES, not necessarily
members of the supported unit.  Those hired after 1 December 1995, are
required to maintain this status by law (Title 10, Section 10216).  Failure
to maintain unit membership or SELRES status, depending on the MTs
Conditions of Employment, may result in removal from their civilian
position.

11.  On 1 September 2004, the Chief, Military Technician Branch,
Headquarters, U. S. Army Reserve Command (USARC), Fort McPherson, Georgia,
responded to an MOC, regarding the applicant's termination of his
employment.  The Headquarters representative states that they contacted
Headquarters, US Army, 90th Regional Readiness Command (RRC), regarding the
applicant's inquiry.  They were informed that the applicant signed a
Department of the Army Form 4651-R on 6 April 2001, requesting reassignment
to the IRR, but according to Army regulatory guidance, he was appropriately
reassigned to the Retired Reserve.  A copy of the form verifying his
signature was enclosed.  His condition of employment for this civilian job
required that he remain a member of the SELRES.  As the applicant stated in
his memorandum, he served over 30 years of military service.  It was
further stated that he should have been aware of his status for the past
3 years.  As a selected reservist, he would have been required to perform
monthly drills with a TPU.



12.  The response continued, the applicant was hired as a MT on 22 October
1979 and should have been terminated from his civilian job no later than
30 days after he lost SELRES status.  The Office of Personnel Management
(OPM) Memorandum of Understanding [the memorandum is unavailable for review
by the Board] and the DODD 1205.18 provides that MTs hired on or after
1 September 1970, are required to maintain membership in a TPU in which
they were employed or employed to support.  Loss of his military status for
any reason within his control constitutes loss of his civil service
position.  Voluntary reassignment into the IRR or Retired Reserve was
within his control.  The applicant had the option of seeking employment
with other government agencies or with Department of the Army positions
that do not require military affiliation as a condition of employment.

13.  On 25 February 2005, the Director, Western Region, AHRC-St. Louis,
responded to the MOC regarding the applicant's removal from the Retired
Reserve.  The Director informed the MOC that they had no authority to
overturn any actions taken while the applicant was assigned to a TPU.  As
the applicant was previously advised, if he believed that an error or
injustice occurred concerning his retirement, he could apply to the Army
Review Board Agency [Army Board for Correction of Military Records] for
corrective action.  Within the Department of the Army, only this Board,
acting for the Secretary of the Army, was empowered to consider
applications for the purpose of determining the existence of an error or
injustice in the records.  In accordance with Army Regulation 140-10,
chapter 6, Section II, the applicant can request consideration for removal
from the Retired Reserve to the IRR with subsequent assignment to the
SELRES.

14.  The applicant provides a copy of his personal call log, for 2004,
which shows that several phone calls were made during the course of
processing of his request.

15.  The applicant's Summary of Retirement Points shows that he had
completed over 30 years of qualifying service for retirement purposes.  It
also shows that he was issued a 20-Year Letter (Notification of Eligibility
for Retired Pay at Age 60) on 3 November 1992.

16.  At the time of application, he was employed as an aircraft mechanic,
wage grade (WG), in Conroe, Texas.



17.  On 10 March 2006, the Chief, Civilian Support Branch, Full Time
Support Division (FTSD), USARC, provided an email to a staff member of the
Board.  He stated that based on the Secretary’s letter, the applicant was
directed by personnel to obtain a physical.  The applicant stated that he
showed up to the medical facility but they were on a training holiday.  He
informed personnel 4 months later and personnel later inquired into the
matter.  He also stated that he never intended to get back in as far as he
could tell which is why he was trying to obtain an amendment to his order
to “involuntary” without any apparent justification.

18.  The applicant contacted his MOC, through email, dated 23 March 2006,
after the submission of his request.  He informed the MOC that he
discovered some information from the USAR MT Handbook.  He states that
according to the MT Handbook that if he was indeed removed from his
military status by the Qualitative Retention Board (QRB) then his
retirement from the Army was taken
out of his hands.  He never received notice of that board doing so.  He
also states that this incident would have happened in 1999 and should be in
his military records.  He felt that the MOC would have faster access to
getting the Army to look for it than he would, and this might also need to
be directed to the ABCMR because then his retirement orders should not
stated “Volunteer” if indeed he was boarded out.  He felt that this was his
last ditch effort but he questions this because of the note and the
handbook as it could save his career as a civilian.

19.  The applicant provides an extract from the USAR MT Information
Handbook. It states that actions which result in loss of Army Reserve
SELRES membership outside the technician’s control are initiated or
required by the Department of the Army.  These include as he points out but
are not limited to:

      a.  Removal by QRB;

      b.  Failure to meet physical requirements (other than height and
weight standards);

      c.  Officers who fail to be selected for promotion when considered on
a best-qualified basis;

      d.  Attainment of maximum age or MRD (mandatory removal date); and




      e.   Have reached their MRD; been eliminated under Qualitative
Retention Program (QRP) action; or other selective procedures may be
retained in an active status provided the MT:

           (1) Requests an exception/extension;


           (2) Is not eligible for an immediate civil service retirement
      annuity; and


           (3) Will attain eligibility for an immediate civil service
      retirement
      annuity at age 60, and is fully qualified for retention on military
service.

20.  On 3 May 2006, an email was provided by the Chief, Civilian Support
Branch, FTSD, USARC.  It was stated that the command did not believe the
applicant was non-selected by a QRB since there is no evidence of such a
board action; however, if he had been selected for non-retention by a QRB
he would have been involuntarily released for that reason, not a voluntary
reassignment. The USARC representative further stated that the applicant
had accepted a non-technician job at the CCAD (Corpus Christi Army Depot),
in Texas and his last day of duty as a MT was 15 April 2006.  The Command
is now in the process of identifying all of their MTs who could have been
retained in violation of Title 10, US Code, sections 10216 and 10218 in
case there were Anti-Deficiency Act violations.

21.  Army Regulation 140-315 establishes policies for the employment,
utilization, and separation of MTs by the USAR.  Paragraph 6 states that,
effective 1 September 1970, military membership in a USAR unit is required
for permanent appointment as an MT.  Exceptions are:  "(1) Headquarters
clerical and other positions exempted because incumbent will not be
mobilized;            (2) MTs permanently employed prior to 1 September
1970; and (3) Temporary appointment."  Technicians initially employed after
8 December 1983 in a TPU
must be a member of that TPU.  Technicians initially employed after
8 December 1983 in a support activity must be a member of the SELRES (TPU
or IMA
[Individual Mobilization Augmentee] Program).  Paragraph 8i(4) states that
a request for retention by a USAR MT under the provisions of this paragraph
must be completely justified and submitted through channels to the Chief,
Army Reserve for approval at least 6 months prior to the date the MT would
otherwise be removed from the Selected Reserve.





22.  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 the regulation applies 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.

23.  Chapter 4, of Army Regulation 140-10, prescribes policy and procedures
governing the voluntary or involuntary assignment, reassignment, or
transfer of a Soldier to and from the various control groups that comprise
the Individual Ready Reserve.  Paragraph 4-9d states that the voluntary
reassignment of a TPU or IMA Soldier to an appropriate control group of the
IRR is authorized upon completion of a contractual agreement to serve in a
TPU which the Soldier incurred on initial enlistment in the USAR.  This
policy was later changed to allow commanders to transfer Soldiers who had
been issued a 20-year letter to the retired reserve without their request
instead of discharge.

24.  Paragraph 6-4 of Army Regulation 140-10 pertains to transfer from the
Retired Reserve.  The criteria for transfer from the Retired Reserve to the
Ready Reserve is based on the Soldiers' status:  (a) transfer is not
authorized for Soldiers receiving retired pay unless the Secretary of the
Army makes a special finding that their services are indispensable; (b) a
Soldier who is not receiving retired pay and otherwise qualified may be
transferred to the IRR, or to an appropriate TPU or IMA position vacancy.
The transfer must be voluntary based on the Soldier's request; and (c) all
Retired Reserve members who were removed from active status by board action
or operation of law are ineligible for transfer to the Ready Reserve.

25.  Title 10, United States (US) Code, section 10216 pertains to MTs (dual
status).  It states, in pertinent part, that a MT (dual status) is a
Federal civilian employee who is required to maintain membership in the
Selected Reserve and who is assigned to a civilian position as a technician
in the administration and training of the SELRES or in the maintenance and
repair of supplies or equipment issued to the SELRES of the Army Forces.
It also states, that those
hired after 1 December 1995 are required to maintain membership in "(a) the
unit of the SELRES by which the individual is employed as a MT; or (b) a
unit of the SELRES that the individual is employed as a MT to support."





26.  Title 10 US Code, Section 10218 pertains to Army and Air Force Reserve
technicians; mandatory retirement under civil service law.  It states that
an individual employed by the Army Reserve or Air Force Reserve as a MT
(dual status) who, after 5 October 1999, loses dual status, is eligible, at
the time dual status is lost, for an unreduced annuity and is age 60 or
older at the time, the technician shall be separated not later than 30 days
after the date on which dual status is lost.  If not eligible at the time
dual status is lost for unreduced annuity or is under age 60 at that time,
the technician shall be offered the opportunity to:   (a) regain SELRES
membership and reapply for position; and (b) apply for a   non-MT position
in the civil service.  If an MT continue in their job as NDST (non-dual
status technician), the MT shall not be permitted, after 5 October 2000, to
apply for any voluntary personnel action; and shall be separated or retired
within 30 days of becoming eligible for an unreduced annuity and becoming
60 years of age.

27.  DODD 1205.18 covers full-time support (FTS) to the Reserve Component.
It maintains a cadre of FTS personnel who are responsible for assisting the
organization, administration, recruitment, instruction, training,
maintenance and supply support to the Reserve Component (RC).  The mix of
FTS personnel, which consist of Active component (AC) personnel, Active
Guard and Reserve (AGR) personnel, MTs (dual status), NDST, and other
Federal civilian (CIV) employees, shall be determined by the Secretary
concerned to optimize   consistency and stability for each RC to achieve
its assigned mission.

28.  Section 4.11.1 states that MTs shall, as a condition of their civilian
employment, maintain dual status as members of the SELRES component by
which employed and shall remain qualified in both their civilian and
military positions.  MTs shall maintain active status in the RC unit in
which they are employed as a civilian, or one which they are employed to
support (Army Reserve non-unit MTs must maintain membership in the SELRES
component by which employed).  The skill requirements of the military and
civilian positions for MTs shall be compatible.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was serving in the
USAR, as a first sergeant, in a TPU, with the 352nd Engineer Company,
Yoakum, Texas.  He was also employed as a civilian, a Federal employee,
with the status of MT (dual status), under the CSRS.


2.  The evidence shows that the applicant requested voluntary reassignment
to the IRR on 6 April 2001, under the provisions of Army Regulation 140-10,
chapter 4, paragraph 4-9.  He prepared two originals and both were signed
by him and his commander.  He alleges his purpose for completing two
originals was to prevent an error from transpiring between his Group and
Brigade and to prevent fraud.  His reason for transfer shown on his DA Form
4651-R was to complete his contractual obligation (transfer to IRR) and not
to retire.

3.  The applicant was issued a permanent profile of 333311, on 19 May 2001,
due to calcific tendonitis, osteoarthritis both knees; s/p prostate
surgery; and for hearing loss.  He was also administered a 5-year periodic
physical examination on the same day.  He was diagnosed as having multiple
clinical problems with a recommendation that he be boarded out of the
service.  There was no determination of qualified or not qualified for
retention at this time.  By Army standards, the applicant felt he was a
medically unfit Soldier and could and should appear before an MMRB.

4.  The applicant was directed by personnel to obtain a physical.  However,
he alleges that he showed up to the medical facility but they were on a
training holiday.  He informed personnel 4 months later and personnel later
inquired into the matter.  However, there is no evidence, and the applicant
has provided none, to show that he attempted to obtain another physical
prior to his release.

5.  The applicant had a letter from three commanders who wanted him
retained.  After his evaluation, he went to his TPU and had a conference
call with his command.  He requested to stop all and any actions pertaining
to his transfer to the IRR and that he would send a written request to back
up his verbal request.  His reason was that he should appear before an MMRB
to be medically retired instead of being transferred to the IRR.  The
command's direct order was "no" and not to send any documentation because
he was to be retired anyway.  During this incident, his wife and another
Soldier were present.

6.  The applicant was voluntarily released from his TPU and transferred to
the Retired Reserve effective 27 July 2001, in the rank of 1SG, due to
voluntary reassignment.

7.  The applicant provided two copies of his DA Form 4651-R with his
application. The one he alleges to have kept was unaltered.  The other
copy, the one processed by the unit indicated in item 5, "Retired Res"
(Reserve).  It is unknown who made this entry and when the entry was added
to the form.

8.  The applicant alleges that whoever wrote or was directed to publish the
orders volunteered him to retire; however, it was his intention to continue
his enlistment and relocate to another assignment.

9.  The applicant later inquired to his facility supervisor for assistance
to have his orders corrected; however, his facility supervisor directed him
to go back to work. He later felt that he was fighting a losing battle.  He
has completed over 28 years of civilian service with many accolades and
found himself in a position of losing his full retirement benefits, with
medical, as he is under the CSRS not FERS.

10.  A memorandum was prepared by the Deputy for Aviation Management and
Support, Fort Sheridan that identified the applicant as a MT, not having an
assignment in the SELRES.  The memorandum stated that MTs hired on or after
1 September 1970, were required to maintain membership in the SELRES as
required by DODD 1205.18.  It also stated that MT employed in support
activities need only be members in the SELRES, not necessarily members of
the supported unit.  Those hired after 1 December 1995, were required to
maintain this status by law.

11.  The applicant sought assistance from his MOC and his MOC enlisted the
aid of another MOC, both working together in consonance to assist him, to
get answers to his dilemma.  Through the liaison, he received answers from
the DSA, Human Resources, and from AHRC-St. Louis that did not really help
him.

12.  The Chief, MT Branch, USARC, responded to a MOC, regarding the
applicant's termination of his employment.  The Chief, MT Branch, stated
that they contacted the 90th RRC, regarding the applicant's inquiry.  They
were informed that the applicant signed a DA Form 4651-R on 6 April 2001,
requesting assignment to the IRR, but according to Army regulatory
guidance, he was properly reassigned to the Retired Reserve.  A copy of the
form verifying his signature was enclosed. The applicant's condition of
employment for this civilian job required that he remain a member of the
SELRES.  The Chief, MT Branch, USARC, felt that the applicant should have
been aware of his status for the past 3 years.







13.  The USARC official stated that the applicant was hired as a MT on
22 October 1979 and should have been terminated from his civilian job no
later than 30 days after he lost his SELRES status.  Regulatory guidance
within OPM Memorandum of Understanding [which is unavailable for review]
and DODD 1205.18, provided that loss of military status for any reason,
within his control, constitutes loss of his civil service position.
Voluntary assignment into the IRR or Retired Reserve was within his
control.  The applicant had the option of seeking employment with other
government agencies or within DA positions that did not require military
affiliation as a condition of employment.

14.  The evidence shows that the US Army Director, Western Region,
responded to a MOC regarding the applicant's removal from the Retired
Reserve.  The Director informed the MOC that they had no authority to
overturn any actions taken while the applicant was assigned to a TPU.  The
applicant was advised that if an error or injustice had occurred concerning
his retirement, he could apply to this Board for relief and that he could
request consideration for removal from the Retired Reserve to the IRR with
subsequent assignment to the SELRES.

15.  The applicant discovered information from the USAR MT Handbook and
according to the handbook that if he was indeed removed from his military
status by the QRB, then his retirement from the Army was taken out of his
hands.  He never received notice of that board doing so and the incident
would have occurred in 1999.  The Handbook also indicated what type of
actions would occur if the applicant lost his Army Reserve SELRES
membership "outside his control."

16.  The Chief, Civilian Support Branch, FTSD, USARC, informed the Board
that the command did not believe the applicant was non-selected by a QRB.
However, had he been non-selected, he would have been removed for that
reason, not voluntarily reassigned.  The applicant later accepted a job out
of the MT program with CCAD, in Texas, with his last duty day in the MT
Program as 15 April 2006.

17.  The applicant as a senior noncommissioned officer with 30 years of
service should have been aware of the importance to maintain a current
physical and from the evidence provided the applicant did not ensure that
this critical requirement for active reserve membership was completed.  It
appears the commander protected the applicant by transferring him to the
Retired Reserve versus discharge.  Therefore, relief in this case would not
be appropriate.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JRM_  __RCH__  __SWF___  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.




                                  ____Jeanette McCants_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004721                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060824                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20010721                                |
|DISCHARGE AUTHORITY     |AR 140-10                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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