RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 AUGUST 2006
      DOCKET NUMBER:  AR20050016763


      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. Rene’ R. Parker               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. James Gunlicks                |     |Member               |
|     |Ms. Peguine 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 his discharge orders be amended to show that he
was transferred to the Retired Reserve.

2.  The applicant states he completed 20 years of active and reserve
service and received his notification of eligibility for retired pay on 20
August 1995.  He maintains that he completed his 20 years of service in
1993 at which time he requested to be transferred to the retired reserve.
However, he said he recently found out that he was discharged rather than
transferred to the retired reserve.

3.  The applicant provides a copy of his 20 year letter, retirement points
summary, and his election options.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 3 November 1994.  The application submitted in this case
is dated    11 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 record shows that he originally enlisted in the Regular
Army on 19 September 1966.  He served in the Regular Army until he accepted
an appointment as a Reserve Warrant Officer in the United States Army
Reserve (USAR) on 26 September 1967.  The applicant was later commissioned
as a first lieutenant on 19 December 1969.

4.  Records further show that on 21 October 1989 the applicant was notified
of his options after being passed over for promotion the second time.  The
memorandum informed him that in view of his second nonselection for
promotion, his personal records were reviewed to determine his Reserve
status and the action that was required by regulation.

5.  Memorandum dated 3 May 1993, from the Chief, Transition Branch, shows
the applicant was notified concerning his expiration of eligibility for
retention on active status in the Army Reserve.  The memo stated that the
applicant was retained in the Active Reserve to complete 20 years of
service for retired pay.  The applicant’s records indicated that he had
completed the 20 years and his exception had expired.  Therefore, the memo
stated that the applicant’s discharge or retirement from the Active Reserve
was mandatory by law.

6.  The applicant provided an endorsement to the memo above, subject:
Election Options, with a suspense date of 3 June 1993.  The endorsement
indicated that the applicant elected option “d - Transfer to the Retired
Reserve.”  The applicant signed and dated this endorsement on 5 October
1993.  A copy of his election option is not contained in his military
personnel files.

7.  The retirement points summary sheet shows the beginning date of
       19 September 1966 to 12 December 1992.  This sheet indicates that
the applicant had accumulated 20 years and 7 days of qualifying service for
retirement.

8.  Orders dated 3 November 1994 discharged the applicant from the USAR
effective 12 December 1992.

9.  The applicant’s 20 year letter, dated 29 August 1995, notified him that
he will be eligible for retired pay at age 60.

10.  In the processing of this case, an advisory opinion was obtained from
the Transition and Separations Branch, Human Resources Command, St Louis
Missouri.  The Transition and Separations Branch stated that the applicant
was non-selected for promotion but, was retained to complete 20 years of
qualifying service.  During the time he was retained, the applicant’s
records remained on the Reserve Active Status List and he was considered by
each subsequent promotion board until removal was required.  At the end of
his maximum retention period, he was notified that removal was necessary at
that time. “Because no reply was received, discharge orders were issued.”
The Transition and Separations Branch stated that the applicant’s discharge
orders are valid and in accordance with Army Regulations at that time.  The
Transition and Separations Branch concluded that the applicant’s removal
from an active status and discharge from the USAR, effective 12 December
1992, are valid orders and should not be revoked.

11.  The advisory opinion was forwarded to the applicant on 26 April 2006,
for his concurrence and or comments.  The applicant did not provide a
response.
12.  Army Regulation 140-10 (Assignments, Attachments, Details, and
Transfers) provides provisions for removal of Soldiers assigned to the
Selected Reserve, the IRR, and the Standby Reserve.  The regulation states
that officers having 18 or 19 years of qualifying Federal service for
retired pay will not be removed without their consent.  Officers who meet
this criteria on the date removal is required will be retained to complete
20 years.  Retained officers will be informed they must notify the
appropriate authority when the service is completed.  Retention is
authorized until the date on which 20 years of qualifying Federal service
for retired pay is completed.  Additionally, the regulation states that
those Soldiers who complete a total of 20 years of active or inactive
service must request transfer to the Retired Reserve.

13.  In 1949 Congress established a Reserve Component Retirement Plan. 
Section 12731, 10 United States Code, provides an entitlement to certain
members of the Reserve Components to retired pay and benefits at age 60. 
In order to receive retired pay, a Soldier must meet minimum requirements,
including:

            a.  must be at least 60 years of age;

            b.  performed at least 20 years of qualifying service;

            c.  performed the last 8 years of qualifying service while a
member of the active reserve;

            d.  not be entitled, under any other provision of law, to
retired pay from an armed force; and

            e.  must apply for retired pay by submitting an application.

14.  Reserve retired pay, for Soldiers who first join any military service
before
8 September 1980, is computed by multiplying their years of satisfactory
(equivalent) service by 2.5 percent up to a maximum of 75 percent.  The
resulting percentage will be applied to the basic pay in effect for the
soldier (based on retired pay grade and years of service-longevity) on the
date retired pay starts to determine monthly retired pay.  Guard and
Reserve Soldiers who separate or are discharge before age 60 will have
their total years of service for longevity pay determined at time of
separation.  Guard and Reserve Soldiers who transfer to the Retired Reserve
until age 60 will have their total years of service for longevity
determined at age 60.


DISCUSSION AND CONCLUSIONS:

1.  Although the applicant provides a copy of his election option
indicating that he selected to be transferred to the Retired Reserve, there
is not a copy in his military personnel file.  Additionally, the suspense
date listed on the election of options was June 1993 and the applicant’s
signature is dated October 1993.

2.  The Transition and Separations Branch recommends the applicant’s
discharge orders not be revoked.  The Transition and Separations Branch
argues that the discharge orders are valid because the applicant was
notified of his removal from the Reserve Active Status List but, failed to
reply; therefore, discharge orders were issued.

3.  This Board agrees with the Transition and Separations Branch
recommendation.  Other than the applicant’s copy of his election option,
which was dated 4 months after the suspense date, he has provided no
evidence to show that he requested to be transferred to the Retired
Reserve.  Consequently, in the absence of documentation indicating the
applicant’s desire, the Reserve Personnel Center had no other option but,
to discharge the applicant in accordance with the regulation.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 November 1994; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on      2 November 1997.  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

__CG ___  ___JG  __  __PT ___  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.




                                  _____Curtis Greenway________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016763                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060810                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |136.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]