RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:       10 August 2006
      DOCKET NUMBER:  AR20050016231


      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. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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 to the Retired Reserve with
entitlement to retired pay.

2.  The applicant states, in effect, that he would like his status of being
discharged from the US Army be reversed and corrected to a status of
retirement.  He also states that he served in the US Army for 28 years
after having received his commission through the Reserve Officer's Training
Corps in 1967.  He served during the Vietnam Conflict until 1969 at which
time he was released from active duty and went into the US Army Reserve
(USAR).  He served faithfully and continually in the Reserve and in 1983
applied and was accepted to enter active duty as an Active Guard Reserve
(AGR) officer.  He was promotable to colonel when he left the Army but was
unable to find an available colonel's slot.  He left the Army in July 1995
because of his mandatory removal date.  He expected that regular Reserve
retirement would be automatic and that his discharge from the Army was
merely removal from the active rolls.

3.  The applicant also states that he did not receive any communication
from the Department of the Army which clearly and fully explained that his
discharge was automatic if he did not make an election otherwise and that
it would mean his benefits of 28 years of service would be completely
removed.  He did not understand the implications of the discharge, nor was
it what he wanted or expected after serving his country for 28 years.  Even
though he received an honorable discharge certificate in 1996, he was not
aware of what had taken place until earlier this year when he contacted the
Human Resources Command in St. Louis about filing for retired pay.  He
hopes the Board will favorably consider reversing his discharge and
reinstating him in the Retired Reserve.

4.  The applicant provides a copy of his Chronological Statement of
Retirement Points in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 December 1996, the date of his separation from the USAR.
The application submitted in this case is dated 30 October 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 was appointed in the
USAR, as a second lieutenant, effective 1967.  He was promoted to major
effective 15 June 1979.

4.  He was ordered to active duty in an AGR status effective 28 November
1983. He was promoted to lieutenant colonel effective 14 June 1986.

5.  He was released from active duty effective 3 July 2005 and transferred
to the USAR Control Group (Reinforcement).

6.  He was discharged from the USAR effective 13 December 1996.

7.  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 that
when he was separated from the USAR he was advised of his eligibility to
request transfer to the Retired Reserve, or that he had requested transfer
to the Retired Reserve, or requested to be discharged.

8.  The applicant's Chronological Statement of Retirement Points, dated
24 May 2005, shows that he was credited with 28 years creditable service
for retired pay as of 13 December 1996.

9.  The applicant reached his 60th birthday on 4 November 2005.

10.  Army Regulation 135-180 (Army National Guard and Army Reserve-
Qualifying Service for Retired Pay Nonregular Service), indicates, in
pertinent part, that each Reserve component Soldier who completes 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.

11.  Army Regulation 135-180 also specifies that to be eligible for retired
pay, an individual does not need to have a military status at the time of
application for retired pay, but must have (1) attained age 60; (2)
completed a minimum of 20 years of qualifying service; and, (3) served the
last 8-years of his or her qualifying service as a Reserve Component (RC)
Soldier.  The requirement to serve the last 8 years in a RC has since been
amended to the last 6-years.  It also specifies that eligible members must
make application for retired pay.
12.  Army Regulation 140-10 provides, with some exceptions, for separation
of lieutenant colonel for length of service.  It specifies that lieutenant
colonel may not exceed 28 years of service or age 60.  Soldiers removed
from an active status will be discharged or, if qualified and if they so
request, will be transferred to the Retired Reserve.

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 28 qualifying
years of service for Reserve retirement.

2.  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.  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.  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 voiding his 13 December 1996 discharge from the USAR
and assigning him to the Retired Reserve effective 13 December 1996, with
entitlement to retired pay upon his application.

BOARD VOTE:

_PMT____  __JBG _  __CLG___  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 voiding his 13 December 1996 discharge
from the

United States Army Reserve Control Group (Reinforcement) and assigning him
to the Retired Reserve effective 13 December 1996, with entitlement to
retired pay upon his application.




                                  _____Curtis L. Greenway ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016231                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060810                                |
|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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