RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 August 2006
      DOCKET NUMBER:  AR20050016182


      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. Paul M. Smith                 |     |Chairperson          |
|     |Ms. LaVerne Douglas               |     |Member               |
|     |Mr. Ronald D. Gant                |     |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, transfer from the Retired Reserve to
a troop program unit (TPU).

2.  The applicant states, in effect, that he was retired for maximum years
of service effective 1 August 1996.  He received separation pay and
requests that his pay be waived to repay the amount and be transferred to a
TPU.  He is currently a military technician/unit administrator (UA) for the
223rd Maintenance Company.

3.  The applicant provides a Department of the Army Message, dated 10 May
2005, a copy of his DA Form 2807-1 (Report of Medical History), dated
19 October 2005, a copy of his DA Form 2808 (Report of Medical
Examination), dated 19 July 2005, a copy of a document from an unknown
source, pertaining to his security investigation, and a copy of a
memorandum for transfer, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 August 1996, the date of his transfer to the Retired
Reserve.  The application submitted in this case is dated 19 October 2005
but was received for processing on 10 November 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 that he enlisted in and entered
active duty (AD) in the Regular Army on 15 January 1968, as a helicopter
repairman (67N).  His date of birth is 13 February 1947.  He was promoted
to specialist five (SP5/E-5) on 13 October 1969.  He continued to serve
until he was honorably released from AD on 16 September 1970.  He was
transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).
He continued to serve until he was honorably discharged on 14 January 1974.

4.  After a break in service, he enlisted in the USAR on 2 March 1975.  He
was promoted to sergeant first class (SFC/E-7) effective 13 January 1991.

5.  On 26 January 1996, the applicant was notified of a QRB (Qualitative
Retention Board) review to be convened under the provisions of Army
Regulation 135-205.  On 29 January 1996, he chose to transfer to the
Control Group (Reinforcement) of the Inactive [Individual] Ready Reserve if
not selected for retention and made no comment.

6.  On 27 January 1996, the applicant was notified again regarding his QRB
review.  He was informed that the board would convene on 23 March 1996 and
that according to regulation only the best qualified personnel would be
retained for continued unit membership.

7.  On 11 March 1996, the Deputy Chief of Staff for Personnel (DCSPER),
Headquarters, U. S. Army, 90th Regional Support Group (RSG), prepared a
memorandum for the Commander, Army Reserve Personnel Center (ARPERSCEN),
Subject:  Request for 20 Year Letters, pertaining to several Soldiers, with
the applicant being one of them.  The memorandum indicated that these
Soldiers were required to be separated from their units no later than
30 days after the required years of service were completed according to
Army Regulation 140-10, paragraph 7-2g.  However, it was noted removal
could not be accomplished without a copy of these Soldiers’ 20-Year Letters
(Notification of Eligibility for Retired Pay at Age 60).  The DCSPER’s
representative requested assistance in obtaining a copy of the applicant's
20-Year Letter so that they could finalize the applicant's mandatory
separation from his unit of assignment.

8.  The applicant's Summary of Retirement Points, printed from the Human
Resources Command Integrated WEB Service, shows that he was issued a
   20-Year Letter on 26 March 1996.

9.  The applicant continued to serve in the USAR until he was released from
his TPU effective 1 August 1996, at the age of 49 years, 5 months, and
18 days, and was transferred to the Retired Reserve, due to completion of
maximum authorized years of service, in the rank of SFC.

10.  The applicant's Summary of Retirement Points, printed from the Human
Resources Command Integrated WEB Service, Retirement Information Section,
shows he completed 23 years, 1 month, and 2 days of qualifying service
for retirement purposes.


11.  A HQDA Message with a Date/Time Group of 101621Z May 2005, Subject:
Suspension of Maximum Years of Service (MYOS) for Army Reserve TPU Enlisted
Personnel, states that the Acting Assistant Secretary of the Army (Manpower
and Reserve Affairs [ASA M&RA]) approved the suspension of MYOS.  The
policy suspended MYOS for Army Reserve enlisted TPU Soldiers
for the duration of partial or higher levels of mobilization not to exceed
age 60.  Continued promotion consideration of Soldiers retained beyond MYOS
if otherwise eligible and had not reached age 57.  A priority revision to
reflect the revised policy, as well as to incorporate the existing
peacetime policy for MYOS, was in progress.

12.  The applicant provides a copy of his Report of Medical Examination,
dated 19 July 2005, which shows that he was found qualified for service.

13.  The applicant provides a copy of a document from an unknown source,
pertaining to his security investigation, dated 2 August 2005.  This
documents shows that an "09B" investigation was conducted.

14.  On 4 August 2005, the applicant submitted a request for transfer from
the Retired Reserve to the Individual Ready Reserve (IRR) to the Army Human
Resources Command (AHRC)-St. Louis.  He informed AHRC that he was currently
a unit administrator for the 223rd Maintenance Company in Grand Prairie,
Texas.  He requested transfer from the Retired Reserve to the IRR in order
to transfer to a TPU.

15.  The applicant provides a copy of his Report of Medical History, dated
19 October 2005, which shows that he was found to be in good health.

16.  On 8 December 2005, an advisory opinion was provided by the Human
Resources Assistant, 90th RSC (Regional Support Command) Western Region,
AHRC-St. Louis.  The opinion stated that after a review of the applicant's
military record, it was determined that he applied for and was granted
transfer to the Retired Reserve with Special Separation Pay (SSP) and Grey
Area Benefits.  By law, this prevented him from being reassigned from the
Retired Reserve back to an active status without the approval of the
Secretary of the Army.

17.  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.

18.  Paragraph 7-2 of Army Regulation 140-10, provides guidance on length
of Reserve service.  It states, in pertinent part, that the actual removal
date will be 30 days after the date on which the required years of service
are completed.  However, a USAR enlisted Soldier in a TPU status will not
be removed unless a 20-Year Letter is issued.

19.  Army Regulation 135-205 prescribes policy, responsibilities, and
procedures for Special Duty Assignment (SDA) Proficiency Pay (PP) for USAR
personnel, the IRR Enlisted Personnel Management System, the Qualitative
Retention Program and the Reserve Components Command Sergeant Major
Program.  This regulation applies to all enlisted members of the Army
National Guard (ARNG) and the USAR.

20.  Chapter 4, of Army Regulation 135-205 governs the Qualitative
Retention Program (QRP).  The QRP is designed to ensure only the best
qualified Soldiers are retained beyond 20 years of qualifying service, to
provide for career incentive, to assure advancement to the high grades at
peak years of effectiveness, to satisfy continuing requirement for senior
noncommissioned officers (NCOs), to provide the command with tools to
control enlisted personnel and inventory, and management of career
progression.  The QRP is not designed to nor intended to be used in lieu of
separation or removal procedures authorized by other regulations (that is,
unsatisfactory performance, unsatisfactory participation, failure to meet
weight standards, and so forth).

21.  Paragraph 4-4 pertains to zones of consideration for qualitative
retention.  It states that the QRB will consider all unit Soldiers who are
within the following zones by the date the board convenes.  For USAR, the
Soldier must have at least 20 years of qualifying service for retired pay
at age 60, is a SFC/PLT (platoon sergeant) or below, and has completed
21 years of total military service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant's records appeared
before a QRB for selective retention but he was not selected.  He chose to
transfer to the Control Group (Reinforcement) of the IRR if not selected.

2.  The applicant had completed over 20 years of qualifying service prior
to the QRB and was later issued a 20-Year Letter after the QRB.  He had
completed 23 years, 1 month, and 2 days of qualifying service for
retirement purposes.

3.  According to AHRC, the applicant applied for and was granted transfer
to the Retired Reserve with SSP and Grey Area Benefits.
4.  The applicant was transferred to the Retired Reserve in the rank of SFC
effective 1 August 1996 according to regulation due to his maximum years of
service.

5.  The evidence shows that the MYOS was suspended for Army Reserve
enlisted TPU Soldiers for the duration of partial or higher levels of
mobilization not to exceed age 60.

6.  It is noted that the applicant now requests that he be transferred from
the Retired Reserve to a TPU; however, by law, his transfer to the Retired
Reserve and his receipt of SSP and Grey Area Benefits now prevent him from
being reassigned back to an active status without approval by the Secretary
of the Army.

7.  The applicant is currently serving as a military technician/UA and is
over      59 and half years of age (as of August 2006).  He is currently
eligible for retirement benefits and must apply to receive retired pay.
Therefore, his request for transfer from the Retired Reserve to a TPU is
denied.

8.  The applicant contends that he received separation pay and requests
that repayment of SSP pay be waived to enable his transferred to a TPU.
There is no regulatory provision for the waiver of SSP pay received in
order for an applicant's transfer to a TPU.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 August 1996; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 31 July 1999.  The applicant did not 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
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RDG__  _PMS___  __LMD___  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.




                                  ____Paul M. Smith_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016182                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060829                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19960801                                |
|DISCHARGE AUTHORITY     |AR 140-10                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |135                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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